[Title 38 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
38
Part 18 to End
Revised as of July 1, 2004
Pensions, Bonuses, and Veterans' Relief
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2004
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 38:
Chapter I--Department of Veterans Affairs
(Continued) 3
Finding Aids:
Material Approved for Incorporation by Reference........ 975
Table of CFR Titles and Chapters........................ 977
Alphabetical List of Agencies Appearing in the CFR...... 995
List of CFR Sections Affected........................... 1005
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 38 CFR 18.1 refers
to title 38, part 18,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 741-6010.
CFR INDEXES AND TABULAR GUIDES
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The Federal Register Index is issued monthly in cumulative form.
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A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2004.
[[Page ix]]
THIS TITLE
Title 38--Pensions, Bonuses and Veterans' Relief is composed of two
volumes, parts 0-17 and part 18 to End. The contents of these volumes
represent all current regulations of the Department of Veterans Affairs
codified under this title of the CFR as of July 1, 2004.
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
(This book contains part 18 to End)
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Part
chapter i--Department of Veterans Affairs (Continued)....... 18
[[Page 3]]
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)
--------------------------------------------------------------------
Editorial Note: Nomenclature changes affecting chapter I appear at 64
FR 30244, June 7, 1999; 65 FR 1545, Jan. 11, 2000; 66 FR 44053, Aug. 22,
2001; 66 FR 66767, Dec. 27, 2001; 67 FR 16023, Apr. 4, 2002; and 69 FR
18803, Apr. 9, 2004.
Part Page
18 Nondiscrimination in federally-assisted
programs of the Department of Veterans
Affairs--effectuation of Title VI of the
Civil Rights Act of 1964................ 5
18a Delegation of responsibility in connection
with Title VI, Civil Rights Act of 1964. 48
18b Practice and procedure under Title VI of the
Civil Rights Act of 1964 and Part 18 of
this chapter............................ 51
19 Board of Veterans' Appeals: Appeals
regulations............................. 62
20 Board of Veterans' Appeals: Rules of
Practice................................ 71
21 Vocational rehabilitation and education..... 112
23 Nondiscrimination on the basis of sex in
education programs or activities
receiving federal financial assistance.. 521
25 Uniform relocation assistance and real
property acquisition for Federal and
federally assisted programs............. 537
26 Environmental effects of the Department of
Veterans Affairs (VA) actions........... 537
36 Loan guaranty............................... 542
39 Aid to states for establishment, expansion,
and improvement of veterans cemeteries.. 716
40 Intergovernmental review of Department of
Veterans Affairs programs and activities 741
41 Auditing requirements....................... 745
42 Standards implementing the Program Fraud
Civil Remedies Act...................... 752
43 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 768
44 Governmentwide debarment and suspension
(nonprocurement)........................ 795
45 New restrictions on lobbying................ 818
[[Page 4]]
46 Policy regarding participation in National
Practitioner Data Bank.................. 830
47 Policy regarding reporting health care
professionals to State Licensing Boards. 834
48 Governmentwide requirements for drug-free
workplace (financial assistance)........ 835
51 Per diem for nursing home care of veterans
in State homes.......................... 841
52 Per diem for adult day health care of
veterans in State homes................. 865
58 Forms....................................... 888
59 Grants to states for construction or
acquisition of state homes.............. 904
60 Fisher houses and other temporary lodging... 949
61 VA homeless providers grant and per diem
program................................. 951
[[Page 5]]
PART 18_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT
OF VETERANS AFFAIRS_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF
1964--Table of Contents
Subpart A_General
Sec.
18.1 Purpose.
18.2 Application of this part.
18.3 Discrimination prohibited.
18.4 Assurances required.
18.6 Compliance information.
18.7 Conduct of investigations.
18.8 Procedure for effecting compliance.
18.9 Hearings.
18.10 Decisions and notices.
18.11 Judicial review.
18.12 Effect on other regulations, forms and instructions.
18.13 Definitions.
Appendix A to Subpart A--Statutory Provisions to Which This Subpart
Applies
Appendix B to Subpart A--Illustrative Applications
Subparts B-C [Reserved]
Subpart D_Nondiscrimination on the Basis of Handicap
General Provisions
18.401 Purpose.
18.402 Application.
18.403 Definitions.
18.404 Discrimination prohibited.
18.405 Assurances required.
18.406 Remedial action, voluntary action and self-evaluation.
18.407 Designation of responsible employee and adoption of grievance
procedures.
18.408 Notice.
18.409 Administrative requirements for certain recipients.
18.410 Effect of State or local law or other requirements and effect of
employment opportunities.
Employment Practices
18.411 Discrimination prohibited.
18.412 Reasonable accommodation.
18.413 Employment criteria.
18.414 Preemployment inquiries.
Accessibility
18.421 Discrimination prohibited.
18.422 Existing facilities.
18.423 New construction.
Elementary, Secondary, and Adult Education
18.431 Application.
18.432 Location and notification.
18.433 Free appropriate public education.
18.434 Education setting.
18.435 Evaluation and placement.
18.436 Procedural safeguards.
18.437 Nonacademic services.
18.438 Adult education.
18.439 Private education.
Postsecondary Education
18.441 Application.
18.442 Admissions and recruitment.
18.443 General treatment of students.
18.444 Academic adjustments.
18.445 Housing.
18.446 Financial and employment assistance to students.
18.447 Nonacademic services.
Health and Social Services
18.451 Application.
18.452 Health and other social services.
18.453 Drug and alcohol addicts.
18.454 Education of institutionalized persons.
Procedures
18.461 Procedures.
Appendix A to Subpart D--Statutory Provisions to Which This Part Applies
Subpart E_Nondiscrimination on the Basis of Age
General
18.501 Purpose.
18.502 Application.
18.503 Definitions.
Standards for Determining Age Discrimination
18.511 Rules against age discrimination.
18.512 Definitions of ``normal operation'' and ``statutory objective.''
18.513 Exceptions to the rules against age discrimination; normal
operation or statutory objective of any program or activity.
18.514 Exceptions to the rules against age discrimination; reasonable
factors other than age.
18.515 Burden of proof.
18.516 Affirmative action by recipients.
Responsibilities of Department of Veterans Affairs Recipients
18.531 General responsibilities.
18.532 Notice of subrecipients.
18.533 Assurance of compliance and recipient assessment of age
distinctions.
18.534 Information requirements.
Investigation, Conciliation, and Enforcement Procedures
18.541 Compliance reviews.
[[Page 6]]
18.542 Complaints.
18.543 Mediation.
18.544 Investigation.
18.545 Prohibition against intimidation or retaliation.
18.546 Compliance procedure.
18.547 Hearings, decisions, post-termination proceedings.
18.548 Remedial action by recipient.
18.549 Alternate funds disbursal procedure.
18.550 Exhaustion of administrative remedies.
Appendix A to Subpart E--Statutory Provisions to Which This Subpart
Applies
Appendix B to Subpart E--List of Age Distinctions Contained in Statutes
and Regulations Governing Federal Financial Assistance of the
Department of Veterans Affairs
Subpart A_General
Authority: Sec. 602, 78 Stat. 252 (42 U.S.C. 2000d-1) and the laws
referred to in Appendix A.
Sec. 18.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI
of the Civil Rights Act of 1964 (hereafter referred to as the Act) to
the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance
from the Department of Veterans Affairs.
[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept.
24, 1980]
Sec. 18.2 Application of this part.
This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department of
Veterans Affairs, including the types of Federal financial assistance
listed in appendix A to this subpart. It applies to money paid, property
transferred, or other Federal financial assistance extended after the
effective date of this part pursuant to an application approved prior to
such effective date. This part does not apply to (a) any Federal
financial assistance by way of insurance or guaranty contracts, (b)
money paid, property transferred, or other assistance extended before
the effective date of this part, (c) any assistance to any individual
who is the ultimate beneficiary, or (d) any employment practice, under
any such program, of any employer, employment agency, or labor
organization, except to the extent described in Sec. 18.3. The fact
that a type of Federal financial assistance is not listed in appendix A
to this subpart shall not mean, if Title VI of the Act is otherwise
applicable, that a program is not covered. Other types of Federal
financial assistance under statutes now in force or hereinafter enacted
may be added to appendix A to this subpart by notice published in the
Federal Register.
[38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268, Sept.
24, 1980, as amended at 68 FR 51369, Aug. 26, 2003]
Sec. 18.3 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient to
which this part applies may not, directly or through contractual or
other arrangements, on grounds of race, color, or national origin:
(i) Deny an individual any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in
any matter related to receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining
whether is satisfied any admission, enrollment, quota, eligibility,
membership or other requirement or condition which individuals must meet
in order to be provided any service, financial aid, or
[[Page 7]]
other benefit provided under the program.
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford an opportunity
to do so which is different from that afforded others under the program.
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program with respect to
individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits of, or subjecting
them to discrimination under any program to which this part applies on
the grounds of race, color or national origin; or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the Act or this part.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of Federal
financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color or national origin.
(c) Medical emergencies. Notwithstanding the foregoing provisions of
this section, a recipient of Federal financial assistance shall not be
deemed to have failed to comply with paragraph (a) of this section if
immediate provision of a service or other benefit to an individual is
necessary to prevent his or her death or serious impairment of his or
her health, and such service or other benefit cannot be provided except
by or through a medical institution which refuses or fails to comply
with paragraph (a) of this section.
(d) Employment practices. (1) Whenever a primary objective of the
Federal financial assistance to a program to which part 18 applies, is
to provide employment, a recipient of such assistance may not (directly
or through contractual or other arrangements) subject any individual to
discrimination on the ground of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising, employment, layoff, or termination, upgrading,
demotion, or transfer, rates of pay or other forms of compensation, and
use of facilities). The requirements applicable to construction
employment under any such program shall be those specified in or
pursuant to part III of Executive Order 11246 (3 CFR Chapter IV) or any
Executive order which supersedes it.
(2) In regard to Federal financial assistance which does not have
providing employment as a primary objective, the provisions of paragraph
(d)(1) of this section apply to the employment
[[Page 8]]
practices of the recipient if discrimination on the ground of race,
color, or national origin in such employment practices tends, on the
grounds of race, color, or national origin, to exclude persons from
participation in, to deny them the benefits of or to subject them to
discrimination under the program receiving Federal financial assistance.
In any such case, the provisions of paragraph (d)(1) of this section
shall apply to the extent necessary to assure equality of opportunity to
and nondiscriminatory treatment of beneficiaries.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17965, July 5, 1973; 42
FR 60144, Nov. 25, 1977. Designated subpart A at 45 FR 63268, Sept. 24,
1980, and further amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369,
Aug. 26, 2003]
Sec. 18.4 Assurances required.
(a) General. (1) Every application for Federal financial assistance
to which this part applies, except an application to which paragraph (b)
of this section applies, and every application for Federal financial
assistance to provide a facility shall, as a condition to its approval
and the extension of any Federal financial assistance pursuant to the
application, contain or be accompanied by an assurance that the program
will be conducted or the facility operated in compliance with all
requirements imposed by or pursuant to this part. Every award of Federal
financial assistance shall require the submission of such an assurance.
In the case of an application for Federal financial assistance to
provide real property or structures thereon, the assurance shall
obligate the recipient, or, in the case of a subsequent transfer, the
transferee, for the period during which the real property or structures
are used for a purpose for which the Federal financial assistance is
extended or for another purpose involving the provision of similar
services or benefits. In the case of personal property the assurance
shall obligate the recipient for the period during which the recipient
retains ownership or possession of the property. In all other cases the
assurance shall obligate the recipient for the period during which
Federal financial assistance is extended pursuant to the application.
The responsible agency official shall specify the form of the foregoing
assurances and the extent to which like assurances will be required of
subgrantees, contractors and subcontractors, transferees, successors in
interest, and other participants. Any such assurance shall include
provisions which give the United States a right to seek its judicial
enforcement.
(2) Transfers of surplus property are subject to regulations issued
by the Administrator of General Services (41 CFR subpart 101-6.2).
(b) Continuing Federal financial assistance. Every application by a
State or a State agency for continuing Federal financial assistance to
which this part applies (including the types of Federal financial
assistance listed in appendix A to this subpart) shall as a condition to
its approval and the extension of any Federal financial assistance
pursuant to the application (1) contain or be accompanied by a statement
that the program is (or, in the case of a new program, will be)
conducted in compliance with all requirements imposed by or pursuant to
this part, and (2) provide or be accompanied by provision for such
methods of administration for the program as are found by the
responsible agency official to give reasonable assurance that the
applicant and all recipients of Federal financial assistance under such
program will comply with all requirements imposed by or pursuant to this
part. In any case in which the recipient is claiming financial
assistance pursuant to arrangements entered into prior to the effective
date of this part, the assurances provided by this paragraph shall be
included in the first application or claim for assistance on or after
the effective date of this part.
(c) Elementary and secondary schools. The requirements of paragraph
(a) or (b) of this section with respect to any elementary or secondary
school or school system shall be deemed to be satisfied if such school
or school system (1) is subject to a final order of a court of the
United States for the desegregation of such school or school system, and
provides an assurance that it will comply with such order, including any
future modification of such order, or (2) submits a plan for the
desegregation of such school or school
[[Page 9]]
system which the responsible agency official determines is adequate to
accomplish the purposes of the Act and this part, at the earliest
practicable time, and provides reasonable assurance that it will carry
out such plan; in any case of continuing Federal financial assistance
the responsible agency official may reserve the right to redetermine,
after such period as may be specified by the official, the adequacy of
the plan to accomplish the purposes of the Act and this part. In any
case in which a final order of a court of the United States for the
desegregation of such school or school system is entered after
submission of such a plan, such plan shall be revised to conform to such
final order, including any future modification of such order.
(d) Extent of application to institution or facility. In the case
where any assurances are required from an academic, a medical care, or
any other institution or facility, insofar as the assurances relate to
the institution's practices with respect to the admission, care, or
other treatment of persons by the institution or with respect to the
opportunity of persons to participate in the receiving or providing of
services, treatment, or benefits, such assurances shall be applicable to
the entire institution or facility.
[38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268, Sept.
24, 1980, and amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369, Aug.
26, 2003]
Sec. 18.6 Compliance information.
(a) Cooperation and assistance. Each responsible agency official
shall to the fullest extent practicable seek the cooperation of
recipients in obtaining compliance with this part and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible agency official or designee, timely, complete
and accurate compliance reports at such times, and in such form and
containing such information, as the responsible agency official or
designee may determine to be necessary to enable the official to
ascertain whether the recipient has complied or is complying with this
part. In the case in which a primary recipient extends Federal financial
assistance to any other recipient, such other recipient shall also
submit such compliance reports to the primary recipient as may be
necessary to enable the primary recipient to carry out its obligations
under this part. In general, recipients should have available for the
agency racial and ethnic data showing the extent to which members of
minority groups are beneficiaries of federally assisted programs.
(c) Access to sources of information. Each recipient shall permit
access by the responsible agency official or designee during normal
business hours to such of its books, records, accounts, and other
sources of information, and its facilities as may be pertinent to
ascertain compliance with this part. Where any information required of a
recipient is in the exclusive possession of any other agency,
institution or person and this agency, institution or person shall fail
or refuse to furnish this information, the recipient shall so certify in
its report and shall set forth what efforts it has made to obtain the
information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program for which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the responsible agency official
finds necessary to apprise such persons of the protections against
discrimination assured them by the Act and this part.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR
10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003]
Sec. 18.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible agency official or
designee shall from time to time review the practices of recipients to
determine whether they are complying with this part.
(b) Complaints. Any person or any specific class of individuals who
believe
[[Page 10]]
they have been subjected to discrimination prohibited by this part may
themselves, or by a representative, file with the responsible agency
official or designee a written complaint. A complaint must be filed not
later than 180 days from the date of the alleged discrimination unless
the time for filing is extended by the responsible agency offical or
designee.
(c) Investigations. The responsible agency official or designee will
initiate a prompt investigation whenever a compliance review, report,
complaint, or any other information indicates a possible failure to
comply with this part. The investigation should include, where
appropriate, a review of the pertinent practices and policies of the
recipient, the circumstances under which the possible noncompliance with
this part occurred, and other factors relevant to a determination as to
whether the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the responsible agency official or designee will so inform the
recipient and the matter will be resolved by informal means whenever
possible. If it has been determined that the matter cannot be resolved
by informal means, action will be taken as provided for in Sec. 18.8.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the responsible agency official or
designee will so inform the recipient and the complainant, if any, in
writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because the
individual has made a complaint, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this part.
The identity of complainants shall be kept confidential except to the
extent necessary to carry out the purposes of this part, including the
conduct of any investigation, hearing, or judicial proceeding arising
thereunder.
[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept.
24, 1980 and amended at 51 FR 10384, Mar. 26, 1986]
Sec. 18.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to, (1) a reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States
(including other titles of the Act), or any assurance or other
contractual undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with Sec. 18.4. If an applicant fails or refuses
to furnish an assurance required under Sec. 18.4 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section Federal financial assistance may be refused in accordance with
the procedures of paragraph (c) of this section. The Department of
Veterans Affairs shall not be required to provide assistance in such a
case during the pendency of the administrative proceedings under such
paragraph except that the Department of Veterans Affairs shall continue
assistance during the pendency of such proceedings where such assistance
is due and payable pursuant to an application therefor approved prior to
the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible agency official has advised the applicant or
recipient of failure to comply and has determined that compliance cannot
be secured by voluntary means, (2) there
[[Page 11]]
has been an express finding on the record, after opportunity for
hearing, of a failure by the applicant or recipient to comply with a
requirement imposed by or pursuant to this part, (3) the action has been
approved by the Secretary pursuant to Sec. 18.10(e), and (4) the
expiration of 30 days after the Secretary has filed with the committee
of the House and the committee of the Senate having legislative
jurisdiction over the program involved, a full written report of the
circumstances and the grounds for such action. Any action to suspend or
terminate or to refuse to grant or to continue Federal financial
assistance shall be limited to the particular political entity, or part
thereof, or other applicant or recipient as to whom such a finding has
been made and shall be limited in its effect to the particular program,
or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance
with Title VI of the Act by any other means authorized by law shall be
taken by the Department of Veterans Affairs until (1) the responsible
agency official has determined that compliance cannot be secured by
voluntary means, (2) the recipient or other person has been notified of
its failure to comply and of the action to be taken to effect
compliance, and (3) the expiration of at least 10 days from the mailing
of such notice to the recipient or other person. During this period of
at least 10 days, additional efforts shall be made to persuade the
recipient or other person to comply with this part and to take such
corrective action as may be appropriate.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10384, Mar. 26, 1986]
Sec. 18.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 18.8(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and either
(1) fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the responsible
agency official that the matter be scheduled for hearing or (2) advise
the applicant or recipient that the matter in question has been set down
for hearing at a stated place and time. The time and place so fixed
shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this paragraph or to
appear at a hearing for which a date has been set shall be deemed to be
a waiver of the right to a hearing under section 602 of the Act and
Sec. 18.8(c) of this part and consent to the making of a decision on
the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department of Veterans Affairs in Washington, D.C., at a time
fixed by the responsible agency official unless the official determines
that the convenience of the applicant or recipient or of the Department
of Veterans Affairs requires that another place be selected. Hearings
shall be held before the responsible agency official or, at the
official's discretion, before an administrative law judge appointed in
accordance with section 3105 of Title 5, U.S.C., or detailed under
section 3344 of Title 5, U.S.C.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Department of Veterans Affairs shall have
the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing decision and
any administrative review thereof shall be conducted in conformity with
the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the
Administrative Procedure Act) and in accordance with such rules of
procedure as are proper (and not inconsistent with this section)
relating to the conduct of the hearing, giving of notices subsequent to
those
[[Page 12]]
provided for in paragraph (a) of this section, taking of testimony,
exhibits, arguments and briefs, requests for findings, and other related
matters. Both the Department of Veterans Affairs and the applicant or
recipient shall be entitled to introduce all relevant evidence on the
issues as stated in the notice for hearing or as determined by the
officer conducting the hearing at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more Federal statutes; authorities, or other
means by which Federal financial assistance is extended and to which
this part applies, or noncompliance with this part and the regulations
of one or more other Federal departments or agencies issued under Title
VI of the Act, the Secretary may, by agreement with such other
departments or agencies where applicable, provide for the conduct of
consolidated or joint hearings, and for the application to such hearings
of rules of procedures not inconsistent with this part. Final decisions
in such cases, insofar as this part is concerned, shall be made in
accordance with Sec. 18.10.
[29 FR 19301, Dec. 28, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR
10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003]
Sec. 18.10 Decisions and notices.
(a) Procedure on decisions by an administrative law judge. If the
hearing is held by an administrative law judge such administrative law
judge shall either make an initial decision, if so authorized, or
certify the entire record including recommended findings and proposed
decision to the responsible agency official for a final decision, and a
copy of such initial decision or certification shall be mailed to the
applicant or recipient. Where the initial decision is made by the
administrative law judge the applicant or recipient may within 30 days
of the mailing of such notice of initial decision file with the
responsible agency official exceptions to the initial decision with
reasons therefor. In the absence of exceptions, the responsible agency
official may within 45 days after the initial decision serve on the
applicant or recipient a notice that the decision will be reviewed. Upon
the filing of such exceptions or of such notice of review the
responsible agency official shall review the initial decision and issue
a decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall
constitute the final decision of the responsible agency official.
(b) Decisions on record or review by the responsible agency
official. Whenever a record is certified to the responsible agency
official for decision or the official reviews the decision of an
administrative law judge pursuant to paragraph (a) of this section, or
whenever the responsible agency official conducts the hearing, the
applicant or recipient shall be given reasonable opportunity to file
with the official briefs or other written statements of its contentions,
and a written copy of the final decision of the responsible agency
official shall be sent to the applicant or recipient and to the
complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived
[[Page 13]]
pursuant to Sec. 18.9(a) a decision shall be made by the responsible
agency official on the record and a written copy of such decision shall
be sent to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of an administrative law judge
or responsible agency official shall set forth a ruling on each finding,
conclusion, or exception presented, and shall identify the requirements
imposed by or pursuant to this part with which it is found that the
applicant or recipient has failed to comply.
(e) Approval by Secretary. Any final decision by an administrative
law judge which provides for the suspension or termination of, or the
refusal to grant or continue Federal financial assistance, or the
imposition of any other sanction available under this part of the Act,
shall promptly be transmitted to the Secretary personally, who may
approve such decision, may vacate it, or remit or mitigate any sanction
imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, to which this regulation applies, and
may contain such terms, conditions, and other provisions as are
consistent with and will effectuate the purposes of the Act and this
part, including provisions designed to assure that no Federal financial
assistance to which this regulation applies will thereafter be extended
to the applicant or recipient determined by such decision to be in
default in its performance of an assurance given by it pursuant to this
part, or to have otherwise failed to comply with this part, unless and
until it corrects its noncompliance and satisfies the responsible agency
official that it will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this section and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible agency official to restore fully its eligibility
to receive Federal financial assistance. Any such request shall be
supported by information showing that the applicant or recipient has met
the requirements of paragraph (g)(1) of this section. If the responsible
agency official determines that those requirements have been satisfied,
the official shall restore such eligibility.
(3) If the responsible agency official denies any such request, the
applicant or recipient may submit a request for a hearing in writing,
specifying why it believes such official to have been in error. It shall
thereupon be given an expeditious hearing, with a decision on the
record, in accordance with rules of procedure issued by the responsible
agency official. The applicant or recipient will be restored to such
eligibility if it proves at such a hearing that it satisfied the
requirements of paragraph (g)(1) of this section. While proceedings
under this paragraph are pending, the sanctions imposed by the order
issued under paragraph (f) of this section shall remain in effect.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003]
Sec. 18.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept.
24, 1980]
Sec. 18.12 Effect on other regulations, forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions issued before the effective date of this part by any officer
of the Department of Veterans Affairs which impose requirements designed
to prohibit any discrimination against individuals on the grounds of
race, color or national origin under any program to which this part
applies, and which authorize the
[[Page 14]]
suspension or termination of or refusal to grant or to continue Federal
financial assistance to any applicant for or recipient of such
assistance for failure to comply with such requirements, are hereby
superseded to the extent that such discrimination is prohibited by this
part, except that nothing in this part shall be deemed to relieve any
person of any obligation assumed or imposed under any such superseded
regulation, order, instruction, or like direction prior to the effective
date of this part. Nothing in this part, however, shall be deemed to
supersede any of the following (including future amendments thereof):
(1) Executive Orders 10925 (3 CFR, 1959-1963 Comp., p. 448), 11114
(3 CFR, 1959-1963, p. 774), and 11246 (3 CFR, 1965 Supp., p. 167) and
regulations issued thereunder, or
(2) Executive Order 11063 (3 CFR, 1959-1963 Comp., p. 652) and
regulations issued thereunder, or any other orders, regulations or
instructions, insofar as such orders, regulations, or instructions
prohibit discrimination on the grounds of race, color or national origin
in any program or situation to which this part is inapplicable, or
prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible agency officials shall
issue and promptly make available to interested persons forms and
detailed instructions and procedures for effectuating this part as
applied to programs to which this part applies and for which he is
responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department of Veterans Affairs or to
officials of other departments or agencies of the Government with the
consent of such departments or agencies, responsibilities in connection
with the effectuation of the purposes of Title VI of the Act and this
part (other than responsibility for final decision as provided in Sec.
18.10) including the achievement of effective coordination and maximum
uniformity within the Department of Veterans Affairs and within the
executive branch of the Government in the application of Title VI and
this part to similar programs and in similar situations. Any action
taken, determination made, or requirement imposed by an official of
another department or agency acting pursuant to an assignment of
responsibility under this paragraph shall have the same effect as though
such action has been taken by the responsible official of this Agency.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980; 68 FR 51369, Aug.
26, 2003]
Sec. 18.13 Definitions.
As used in this part:
(a) The term agency means the Department of Veterans Affairs, and
includes each of its operating agencies and other organization units.
(b) The term Secretary means the Secretary of Veterans Affairs.
(c) The term responsible agency official with respect to any program
receiving Federal financial assistance means the Secretary or other
official of the Department of Veterans Affairs or an official of another
department or agency to the extent the Secretary has delegated authority
to such official.
(d) The term United States means the States of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and the territories and
possessions of the United States, and the term State means any one of
the foregoing.
(e) The term Federal financial assistance includes (1) grants of
Federal funds, (2) the grant or donation of Federal property and
interests in property, (3) the detail of Federal personnel, (4) the sale
and lease of, and the permission to use (on other than a casual or
transient basis), Federal property or any interest in such property
without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient, and (5) any Federal agreement,
arrangement, or other contract which has as one of its purposes the
provision of assistance.
(f) The terms program or activity and program mean all of the
operations of any entity described in paragraphs (f)(1) through (4) of
this section, any
[[Page 15]]
part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraph (f)(1), (2), or (3) of this section.
(g) The term facility includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
(h) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, or organization, or other entity,
or any individual, in the United States, to whom Federal financial
assistance is extended, directly or through another recipient, including
any successor, assignee, or transferee thereof, but such term does not
include any ultimate beneficiary.
(i) The term applicant means a person who submits an application,
request, or plan required to be approved by the Secretary, or by a
recipient, as a condition to eligibility for Federal financial
assistance, and application means such an application, request, or plan.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10385, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003]
Appendix A to Subpart A of Part 18--Statutory Provisions to Which This
Subpart Applies
1. Payments to State homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home,
and hospital care (38 U.S.C. 8131-8137).
3. Space and office facilities for representatives of recognized
national organizations (38 U.S.C. 5902(a)(2)).
4. All-volunteer force educational assistance, vocational
rehabilitation, post-Vietnam era veterans' educational assistance,
survivors' and dependents' educational assistance, and administration of
educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 and 36,
respectively).
5. Sharing of medical facilities, equipment, and information (38
U.S.C. 8151-8157).
6. Approval of educational institutions (38 U.S.C. 104).
7. Space and office facilities for representatives of State
employment services (38 U.S.C. 7725(1)).
8. Medical care for survivors and dependents of certain veterans (38
U.S.C. 1713).
9. Transfers for nursing home care; adult day health care (38 U.S.C.
1720).
10. Treatment and rehabilitation for alcohol or drug dependence or
abuse disabilities (38 U.S.C. 1720A).
11. Aid to States for establishment, expansion, and improvement of
veterans cemeteries (38 U.S.C. 2408).
12. Assistance in establishing new medical schools; grants to
affiliated medical schools; assistance to health manpower training
institutions (38 U.S.C. Chapter 82).
13. Department of Veterans Affairs health professional scholarship
program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-
452).
[51 FR 10385, Mar. 26, 1986]
[[Page 16]]
Appendix B to Subpart A of Part 18--Illustrative Applications
The following examples, without being exhaustive, will illustrate
the application of the nondiscrimination provisions to certain grants of
the Department of Veterans Affairs. (In all cases the discrimination
prohibited is discrimination on the grounds of race, color, or national
origin prohibited by title VI of the Act and this part, as a condition
of the receipt of Federal financial assistance.)
(a) In grants which support the provision of health or welfare
services for veterans in State homes, discrimination in the selection or
eligibility of individuals to receive the services, and segregation or
other discriminatory practices in the manner of providing them, are
prohibited. This prohibition extends to all facilities and services
provided by the State as grantee under the program or by a political
subdivision of the State. It extends also to services purchased or
otherwise obtained by the grantee (or political subdivision) from
hospitals, nursing homes, schools, and similar institutions for
beneficiaries of the program, and to the facilities in which such
services are provided, subject, however, to the provisions of Sec.
18.3(c).
(b) In grants to assist in the construction of facilities for the
provision of health or welfare services assurances will be required that
services will be provided without discrimination, to the same extent
that discrimination would be prohibited as a condition of Federal
operating grants for the support of such services. Thus, as a condition
of grants for the construction of a State home for furnishing nursing
home care, assurances will be required that there will be no
discrimination in the admission or treatment of patients. In the case of
such grants the assurance will apply to patients, to interns, residents,
student nurses, and other trainees, and to the privilege of physicians,
dentists, and other professionally qualified persons to practice in the
nursing home, and will apply to the entire facility for which, or for a
part of which, the grant is made, and to facilities operated in
connection therewith.
(c) Upon transfers of real or personal surplus property for health
or educational uses, discrimination is prohibited to the same extent as
in the case of grants for the construction of facilities or the
provision of equipment for like purposes.
(d) A recipient may not take action that is calculated to bring
about indirectly what this part forbids it to accomplish directly. Thus
a State, in selecting or approving projects or sites for the
construction of a nursing home which will receive Federal financial
assistance, may not base its selections or approvals on criteria which
have the effect of defeating or of substantially impairing
accomplishment of the objectives of the Federal assistance program with
respect to individuals of a particular race, color, or national origin.
(38 U.S.C. 1741, 1744, 8131-8137, 8155, 5902(a)(2), Chapters 31, 34, 35
and 36)
[38 FR 17968, July 5, 1973. Designated subpart A at 45 FR 63268, Sept.
24, 1980]
Subparts B-C [Reserved]
Subpart D_Nondiscrimination on the Basis of Handicap
Authority: 29 U.S.C. 706, 794.
Source: 45 FR 63268, Sept. 24, 1980, unless otherwise noted.
General Provisions
Sec. 18.401 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.
Sec. 18.402 Application.
This part applies to each recipient of Federal financial assistance
from the Department of Veterans Affairs and to each program or activity
that receives such assistance.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.403 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, Pub. L. 95-602, 29 U.S.C. 794.
(b) Section 504 means section 504 of the Act.
(c) Education of the Handicapped Act means that statute as amended
by the Education for all Handicapped Children Act of 1975, Pub. L. 94-
142, 20 U.S.C. 1401 et seq.
(d) Agency means the Department of Veterans Affairs.
(e) Secretary means the Secretary of Veterans Affairs.
[[Page 17]]
(f) Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient but excluding the ultimate beneficiary of the
assistance.
(g) Applicant for assistance means one who submits an application,
request, or plan required to be approved by an Agency official or by a
recipient as a condition to eligibility for Federal financial
assistance.
(h) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guaranty), or any other arrangement by which the Agency provides or
otherwise makes available assistance in the form of:
(1) Funds, including funds extended to any entity for payment to or
on behalf of students admitted to that entity, extended directly to
those students for payment to that entity, or extended directly to those
students contingent upon their participation in education or training of
that entity;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of
property, including;
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government.
(i) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
(j) Handicapped person. (1) Handicapped person means any person who:
(i) Has a physical or mental impairment which substantially limits
one or more major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means:
(A) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological, musculoskeletal; special sense organs including speech
organs; respiratory; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(B) Any mental or psychological discorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(C) The term physical or mental impairment includes, but is not
limited to, such diseases and conditions as orthopedic, visual, speech
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
(iii) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(iv) Is regarded as having an impairment means:
(A) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by a recipient as
constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment;
(C) Has none of the impairments defined in paragraph (j)(2)(i) of
this section, but is treated by a recipient as having such an
impairment.
(k) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the
[[Page 18]]
essential functions of the job in question;
(2) With respect to public elementary, secondary, or adult
educational services, a handicapped person:
(i) Of an age during which nonhandicapped persons are provided such
services;
(ii) Of any age during which it is mandatory under State laws to
provide such services to handicapped persons; or
(iii) To whom a State is required to provide a free appropriate
public education under section 612 of the Education of the Handicapped
Act; and
(3) With respect to postsecondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity; and
(4) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(l) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (j) of this section.
(m) Program or activity means all of the operations of any entity
described in paragraphs (m)(1) through (4) of this section, any part of
which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity that is established by two or more of the
entities described in paragraph (m)(1), (2), or (3) of this section.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.404 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity which receives Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
an aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service that is
equal to that afforded others;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons unless such
action is necessary to provide qualified handicapped persons with aid,
benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
person
[[Page 19]]
by providing significant assistance to an agency, organization, or
person that discriminates on the basis of handicap in providing any aid,
benefit, or service to beneficiaries of the recipient's program or
activity;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving an aid, benefit, or service.
(2) Aids, benefits, and services, to be equally effective, are not
required to produce the identical result or level of achievement for
handicapped and nonhandicapped persons, but must give handicapped
persons equal opportunity to obtain the same result, to gain the same
benefit, or to reach the same level of achievement, in the most
integrated setting appropriate to the person's needs.
(3) Despite the existence of separate or different aid, benefits, or
services provided in accordance with this part, a recipient may not deny
a qualified handicapped person the opportunity to participate in aid,
benefits, or services that are not separate or different.
(4) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration that:
(i) Have the effect of subjecting qualified handicapped persons to
discrimination on the basis of handicap,
(ii) Have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program or
activity with respect to handicapped persons, or
(iii) Perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same State.
(5) In determining the site or location of a facility, an applicant
for assistance or a recipient may not make selections that:
(i) Have the effect of excluding handicapped persons from, deny them
the benefits of, or otherwise subject them to discrimination under any
program or activity that receives Federal financial assistance, or
(ii) Have the purpose or effect of defeating or substantially
impairing the accomplishment of the objective of the program or activity
with respect to handicapped persons.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving Federal financial assistance
includes any aid, benefit, or service provided in or through a facility
that has been constructed, expanded, altered, leased or rented, or
otherwise acquired, in whole of in part, with Federal financial
assistance.
(c) Aid, benefits, or services limited by Federal law. The exclusion
of nonhandicapped persons or the exclusion of a specific class of
handicapped persons from aid, benefits, or services limited by Federal
statue or Executive order to a different class of handicapped persons is
not prohibited by this part.
(d) Special communication. Recipients shall take appropriate action
to ensure that communications with their applicants, employees, and
beneficiaries are available to persons with impaired vision and hearing.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.405 Assurances required.
(a) Assurances. An applicant for Federal financial assistance to
which this part applies shall submit an assurance on a form specified by
the Secretary, that the program or activity will be operated in
compliance with this part.
(b) Duration of obligation. (1) When Federal financial assistance is
extended in the form of real property or structures on the property, the
assurance will obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used for the purpose for which Federal financial
assistance is extended or for another purpose involving the provisions
of similar services or benefits.
(2) Where Federal financial assistance is extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
[[Page 20]]
(3) In all other cases the assurance will obligate the recipient for
the period during which Federal financial assistance is extended.
(c) Extent of application to institution or facility. An assurance
shall apply to the entire institution or facility.
(d) Covenants. (1) Where Federal financial assistance is provided in
the form of real property or interest in the property from the Agency,
the instrument effecting or recording this transfer shall contain a
covenant running with the land to assure nondiscrimination for the
period during which the real property is used for a purpose for which
the Federal financial assistance is extended or for another purpose
involving the provisions of similar services or benefits.
(2) Where no transfer of property is involved but property is
purchased or improved with Federal financial assistance, the recipient
shall agree to include the covenant described in paragraph (b)(2) of
this section in the instrument effecting or recording any subsequent
transfer of property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Agency, the covenant
shall also include a condition coupled with a right to be reserved by
the Agency to revert title to the property if there is a breach of the
covenant. If a transferree of real property proposes to mortgage or
otherwise encumber the real property as security for financing
construction of new, or improvement of existing, facilities on the
property for the purpose for which the property was transferred, the
Secretary may, upon request of the transferee and if necessary to
accomplish such financing and upon such conditions as considered
appropriate, agree to forbear the exercise of the right to revert title
for as long as the lien of the mortgage or other encumbrance remains
effective.
(e) Other methods of enforcement. (1) Recipients are required to
keep such records as the responsible VA official deems necessary for
complete and accurate compliance reports. VA can specify intervals for
reporting and prescribe the form and content of information required to
ascertain whether the recipient has complied or is complying with the
law.
(2) Periodic compliance reviews of training establishments will be
conducted by VA compliance officers. During these reviews recipients are
required to permit access by VA compliance officers during normal
business hours to such of their books, records, accounts, facilities and
other sources of information including interviews with personnel and
trainees as may be pertinent to ascertain compliance with the law.
(3) From study of documentation, results of interviews, and
observation of activities during tours of facilities, compliance
officers will evaluate recipients' compliance status.
[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986;
68 FR 51370, Aug. 26, 2003]
Sec. 18.406 Remedial action, voluntary action and self-evaluation.
(a) Remedial action. (1) If the Secretary finds that a recipient has
discriminated against qualified persons on the basis of handicap in
violation of section 504 or this part, the recipient shall take such
remedial action as the Secretary considers necessary to overcome the
effects of the discrimination.
(2) Where a recipient is found to have discriminated against
qualified persons on the basis of handicap in violation of section 504
or this part and where another recipient exercises control over the
recipient that has discriminated, the Secretary, where appropriate, may
require either or both recipients to take remedial action.
(3) The Secretary may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a
recipient to take remedial action with respect to:
(i) Handicapped persons who are no longer participants in the
recipient's program or activity but who were participants in the program
or activity when such discrimination occurred;
(ii) Handicapped persons who would have been participants in the
program or activity had the discrimination not occurred; or
[[Page 21]]
(iii) Handicapped persons presently in the program or activity, but
not receiving full benefits or equal and integrated treatment within the
program or activity.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped persons.
(c) Self-evaluation. (1) A recipient shall, within one year of the
effective date of this part:
(i) Evaluate with the assistance of interested persons, including
handicapped persons or organizations representing handicapped persons,
its current policies and practices and the effects of the policies and
practices that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
any policies and practices that do not meet the requirements of this
part; and
(iii) Take, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient that employs fifteen or more persons shall, for at
least three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make available for
public inspection, and provide to the Secretary upon request:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems identified;
and
(iii) A description of any modifications made and of any remedial
steps taken.
(3) Recipients who become such more than one year after the
effective date of these regulations shall complete these self-evaluation
requirements within one year after becoming recipients of Federal
financial assistance.
(The information collection requirements contained in paragraph (c) have
been approved by the Office of Management and Budget under control
number 2900-0415)
[45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984;
68 FR 51370, Aug. 26, 2003]
Sec. 18.407 Designation of responsible employee and adoption of grievance
procedures.
(a) Designation of responsible employee. A recipient that employs
fifteen or more persons shall designate at least one person to
coordinate its efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient that employs
fifteen or more persons shall adopt grievance procedures that
incorporate appropriate due process standards and that provide for the
prompt and equitable resolution of complaints alleging any action
prohibited by this part. Such procedures need not be established with
respect to complaints from applicants for employment or from applicants
for admission to postsecondary educational institutions.
Sec. 18.408 Notice.
(a) A recipient that employs fifteen or more persons shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applicants, and employees, including those with impaired
vision or hearing, and unions or professional organizations holding
collective bargaining or professional agreements with the recipient that
it does not discriminate on the basis of handicap in violation of
section 504 and this part. The notification shall state, where
appropriate, that the recipient does not discriminate in admission or
access to, or treatment, or employment in, its programs or activities.
The notification shall also include an identification of the responsible
employee designated under Sec. 18.407. A recipient shall make the
initial notification required by this paragraph within 90 days of the
effective date of this part. Methods of initial and continuing
notification may include the posting of notices, publication in
newspapers and
[[Page 22]]
magazines, placement of notices in recipient's publication, and
distribution of memorandums or other written communications.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information that it makes available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this section either by including appropriate inserts in existing
materials and publications or by revising and reprinting the materials
and publications.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.409 Administrative requirements for certain recipients.
The Secretary may require any recipient with fewer than fifteen
employees, or any class of such recipients, to comply with Sec. Sec.
18.407 and 18.408 in whole or in part, when the Secretary finds a
violation of this part or finds that such compliance will not
significantly impair the ability of the recipient or class of recipients
to provide benefits or services.
Sec. 18.410 Effect of State or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or
alleviated by the existence of any State law or other requirement that,
on the basis of handicap, imposes prohibitions or limits upon the
eligibility of qualified handicapped persons to receive services or to
practice any occupation or profession.
(b) The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped persons than for
nonhandicapped persons.
Employment Practices
Sec. 18.411 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the basis
of handicap, be subjected to discrimination in employment under any
program or activity to which this part applies.
(2) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination in employment. The
relationships referred to in this section include relationships with
employment and referral agencies, with organizations providing or
administering fringe benefits to employees of the recipient, and with
organizations providing training and apprenticeships.
(b) Specific activities. Nondiscrimination in employment applies to:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or other forms of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including those that are social
or recreational; and
(9) Any other term, condition, or privilege of employment.
(c) Collective bargaining agreements. A recipient's obligation to
comply with
[[Page 23]]
this subpart is not affected by any inconsistent term of any collective
bargaining agreement to which it is a party.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.412 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of a handicapped applicant or employee if
such accommodation would enable that person to perform the essential
functions of the job unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program or activity.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and
usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters and other similar actions.
(c) In determining under paragraph (a) of this section whether an
accommodation would impose an undue hardship on the operation of a
recipient's program or activity, factors to be considered include:
(1) The overall size of the recipient's program or activity with
respect to number of employees, number and type of facilities, and size
of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's work force; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for denial is
the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986;
68 FR 51370, Aug. 26, 2003]
Sec. 18.413 Employment criteria.
(a) A recipient may not use any employment test or other selection
criterion that screens out or tends to screen out handicapped persons or
any class of handicapped persons unless:
(1) The test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question; and
(2) Alternative job-related tests or criteria that do not screen out
or tend to screen out as many handicapped persons are not shown by the
Secretary to be available.
(b) A recipient shall select and administer tests concerning
employment to best ensure that when administered to an applicant or
employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately reflect the applicant's or
employee's job skills, aptitude, or whatever other factor the test
purports to measure, rather than reflect the applicant's or employee's
impaired sensory, manual, or speaking skills (except when those skills
are the factors that the test purports to measure).
Sec. 18.414 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or may not
make preemployment inquiry of an applicant as to whether the applicant
is a handicapped person or as to the nature or severity of a handicap. A
recipient may, however, make preemployment inquiry into the applicant's
ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination pursuant to Sec. 18.406(a), when a
recipient is taking voluntary action to overcome the effects of
conditions that resulted in limited participation in its federally
assisted program or activity pursuant to Sec. 18.406(b), or when a
recipient is taking affirmative action pursuant to section 503 of the
Act, the recipient may invite applicants for employment to indicate
whether and to what extent they are handicapped, provided that:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally if no written questionnaire is
used that the information requested is intended for
[[Page 24]]
use solely in connection with its remedial action obligations or its
voluntary or affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph (d) of this section, that refusal to provide it
will not subject the applicant or employee to any adverse treatment, and
that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty, provided
that:
(1) All entering employees are subjected to such an examination
regardless of handicap, and (2) the results of such an examination are
used only in accordance with the requirements of this part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except that:
(1) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped persons and regarding necessary
accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment;
(3) Government officials investigating compliance with the Act shall
be provided relevant information upon request.
Accessibility
Sec. 18.421 Discrimination prohibited.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program or activity to which
this part applies.
Sec. 18.422 Existing facilities.
(a) Accessibility. A recipient shall operate each program or
activity to which this part applies so that when each part is viewed in
its entirety it is readily accessible to handicapped persons. This
paragraph does not require a recipient to make each of its existing
facilities or every part of a facility accessible to and usable by
handicapped persons.
(b) Methods. A recipient may comply with the requirement of
paragraph (a) of this section through such measures as redesign of
equipment, reassignment of classes or other services to accessible
buildings, assignment of aids to beneficiaries, home visits, delivery of
health, or other social services at alternate accessible sites,
alteration of existing facilities and construction of new facilities in
conformance with Sec. 18.423 or any other methods that make its program
or activity accessible to handicapped persons. A recipient is not
required to make structural changes in existing facilities where other
methods are effective in making its programs or activities readily
accessible to handicapped persons. In choosing among available methods
for complying with paragraph (a) of this section, a recipient shall give
priority to methods that serve handicapped persons in the most
integrated setting appropriate.
(c) Small health, welfare or other social service providers, and
recipients that operate other than educational programs or activities.
If a recipient with fewer than fifteen employees finds after
consultation with a handicapped person seeking its services that there
is no method of complying with paragraph (a) of this section other than
making a significant alteration in its existing facilities, the
recipient may, as an alternative, refer the qualified handicapped person
to other providers whose services are accessible. Where referrals are
necessary, transportation costs shall not exceed costs to and from
recipients' programs or activities.
(d) Time period. A recipient shall comply with paragraph (a) of this
section within 60 days of the effective date of this part except that
when structural changes in facilities are necessary, these changes shall
be made as soon as practicable, but not later than three
[[Page 25]]
years after the effective date of this part.
(e) Transition plan. If structural changes to facilities are
necessary to meet the requirements of paragraph (a) of this section, a
recipient shall develop a transition plan within six months of the
effective date of this part setting forth the steps necessary to
complete such change. The plan shall be developed with the assistance of
interested persons, including handicapped persons or organizations
representing handicapped persons. A copy of the transition plan shall be
available for public inspection. The plan shall, at a minimum:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its program or activity to handicapped
persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full accessibility under paragraph (a) of this section and, if the time
period of the transition plan is longer than one year, identify steps
that will be taken during each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall implement procedures to ensure that
interested persons, including persons with impaired vision or hearing,
can obtain information concerning the existence and location of
services, activities, and facilities that are accessible to and usable
by handicapped persons.
(The information collection requirements contained in paragraph (e) have
been approved by the Office of Management and Budget under control
number 2900-0414)
[45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984;
68 FR 51370, Aug. 26, 2003]
Sec. 18.423 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed so that the facility or part of the facility is
readily accessible to and usable by handicapped persons, if the
construction was commenced after the effective date of this part.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this part in a manner that affects or could affect the usability of
the facility or part of the facility shall, to the maximum extent
feasible, be altered so that the altered portion of the facility is
readily accessible to and usable by handicapped persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of January 18, 1991, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[45 FR 63268, Sept. 24, 1980, as amended at 55 FR 52138, 52141, Dec. 19,
1990]
Elementary, Secondary, and Adult Education
Sec. 18.431 Application.
Sections 18.431 through 18.439 apply to elementary, secondary, and
adult education programs or activities that receive Federal financial
assistance from the Department of Veterans Affairs and to recipients
that operate or receive Federal financial assistance for
[[Page 26]]
the operation of such programs or activities.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.432 Location and notification.
A recipient that operates a public elementary or secondary
educational program shall annually:
(a) Undertake to identify and locate every qualified handicapped
person residing in the recipient's jurisdiction who is not receiving a
public education; and
(b) Take appropriate steps to notify handicapped persons their
parents or guardians of the recipients's duty under Sec. Sec. 18.431
through 18.439.
Sec. 18.433 Free appropriate public education.
(a) General. A recipient that operates a public elementary or
secondary education program shall provide a free appropriate public
education to each qualified handicapped person who is in the recipient's
jurisdiction, regardless of the nature or severity of the person's
handicap.
(b) Appropriate education. (1) The provision of an appropriate
education is the provision of regular or special education and related
aids and services that:
(i) Are designed to meet individual educational needs of handicapped
persons as adequately as the needs of nonhandicapped persons are met;
and
(ii) Are based upon adherence to procedures that satisfy the
requirements of Sec. Sec. 18.434, 18.435, and 18.436.
(2) Implementation of an Individualized Education Program developed
in accordance with the Education of the Handicapped Act is one means of
meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a qualified handicapped person or refer
that person for aid, benefits, or services other than those that it
operates or provides as its means of carrying out the requirements of
Sec. Sec. 18.431 through 18.439. The recipients remain responsible for
ensuring that the requirements of Sec. Sec. 18.431 through 18.439 are
met with respect to any qualified handicapped person so placed or
referred.
(c) Free education. (1) The provision of a free education is the
provision of educational and related services without cost to the
handicapped person, parents or guardian, except for those fees that are
imposed on nonhandicapped persons or their parents or guardian. It may
consist either of the provision of free services or, if a recipient
places a handicapped person or refers that person for aid, benefits, or
services not operated or provided by the recipient as its means of
carrying out the requirements of Sec. Sec. 18.431 through 18.439, of
payment for the costs of the aid, benefits, or services. Funds available
from any public or private agency may be used to meet the requirements
of this subpart. Nothing in this section shall be construed to relieve
an insurer or similar third party from an otherwise valid obligation to
provide or pay for services provided to a handicapped person.
(2) If a recipient places a handicapped person or refers that person
for aid, benefits, or services not operated or provided by the recipient
as its means of carrying out the requirements of this subpart, the
recipient shall ensure that adequate transportation to and from the aid,
benefits, or services is provided at no greater cost than would be
incurred by the person, parents or guardian if the person were placed in
the aid, benefits, or services operated by the recipient.
(3) If placement in a public or private residential program is
necessary to provide free appropriate public education to a handicapped
person because of his or her handicap, the program, including non-
medical care and room and board, shall be provided at no cost to the
person, parents or guardian.
(4) If a recipient has made available, in conformance with this
section and Sec. 18.434, a free appropriate public education to a
handicapped person and the person's parents or guardian chooses to place
the person in a private school, the recipient is not required to pay for
the person's education in the private school. Disagreements between a
parent or guardian and a recipient regarding whether the recipient has
made a free appropriate public education available or regarding the
question of financial responsibility are subject to the due process
procedures of Sec. 18.436.
[[Page 27]]
(d) Compliance. A recipient may not exclude any qualified
handicapped person from a public elementary or secondary education after
the effective date of this part. A recipient that is not, on the
effective date of this part, in full compliance with the requirements of
paragraphs (a) through (c) of this section shall meet those requirements
at the earliest practicable time, but not later than October 1, 1981.
[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986;
51 FR 12702, Apr. 15, 1986; 68 FR 51370, Aug. 26, 2003]
Sec. 18.434 Education setting.
(a) Academic setting. A recipient shall educate, or shall provide
for the education of, each qualified handicapped person in its
jurisdiction with persons who are not handicapped to the maximum extent
appropriate to the needs of the handicapped person. A recipient shall
place a handicapped person in the regular educational environment
operated by the recipient unless it is demonstrated by the recipient
that the education of the person in the regular environment with the use
of supplementary aids and services cannot be achieved satisfactorily. In
deciding whether to place a person in a setting other than the regular
educational environment, a recipient shall consider the proximity of the
alternate setting to the person's home.
(b) Nonacademic settings. In providing or arranging for the
provision of nonacademic and extracurricular services and activities, a
recipient shall ensure that handicapped persons participate with
nonhandicapped persons in those activities and services to the maximum
extent appropriate to the needs of the handicapped person in question.
(c) Comparable facilities. If a recipient in compliance with
paragraph (a) of this section operates a facility that is identifiable
as being for handicapped persons, the recipient shall ensure that the
facility and the services and activities provided in that facility are
comparable to the other facilities, services, and activities of the
recipient.
Sec. 18.435 Evaluation and placement.
(a) Preplacement evaluation. A recipient that operates a public
elementary or secondary education program or activity shall conduct an
evaluation of any qualified person who, because of handicap, needs or is
believed to need special education or related services before taking any
action concerning the initial placement of the person in regular or
program special education and any subsequent change in placement.
(b) Evaluation procedures. Elementary, secondary, and adult
education programs or activities that receive Federal financial
assistance shall establish standards and procedures for the evaluation
and placement of persons who, because of handicap, need or are believed
to need special education or related services which ensure that:
(1) Tests and other evaluation materials have been validated for the
specific purpose for which they are used and are administered by trained
personnel in conformance with the instructions provided by their
producer;
(2) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those which are
designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered to best ensure that, when a
test is administered to a student with impaired sensory, manual, or
speaking skills, the test results accurately reflect the student's
aptitude or achievement level or whatever other factor the test purports
to measure, rather than reflect the student's impaired sensory, manual,
or speaking skills (except where those skills are the factors that the
test purports to measure.)
(c) Placement procedures. In interpreting evaluation data and in
making placement decisions, a recipient shall:
(1) Draw upon information from a variety of sources, including
aptitude and achievement tests, teacher recommendations, physical
condition, social or cultural background and adaptive behavior;
(2) Establish procedures to ensure that information obtained from
all sources is documented and carefully considered;
(3) Ensure that the placement decision is made by a group of
persons, including persons knowledgeable about
[[Page 28]]
the student, the meaning of the evaluation data and the placement
options; and
(4) Ensure that the placement decision is made in accordance with
Sec. 18.434.
(d) Reevaluation. A recipient to which this section applies shall
establish procedures, in accordance with paragraph (b) of this section,
for periodic reevaluation of students who have been provided special
education and related services. A reevaluation procedure consistent with
the Education for the Handicapped Act is one means of meeting this
requirement.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.436 Procedural safeguards.
(a) A recipient that operates a public elementary or secondary
education program shall implement a system of procedural safeguards with
respect to actions regarding the identification, evaluation, or
educational placement of persons who, because of handicap, need or are
believed to need special instruction or related services. The system
shall include:
(1) Notice;
(2) An opportunity for the parents or guardian of the person to
examine relevant records;
(3) An impartial hearing with opportunity for participation by the
person's parents or guardian and representation by counsel; and
(4) Review procedure.
(b) Compliance with the procedural safeguards of section 615 of the
Education of the Handicapped Act is one means of meeting this
requirement.
Sec. 18.437 Nonacademic services.
(a) General. (1) Elementary, secondary, and adult education programs
that receive Federal financial assistance shall provide nonacademic and
extracurricular services and activities in a manner which gives
handicapped students an equal opportunity for participation in these
services and activities.
(2) Nonacademic and extracurricular services and activities may
include counseling services, physical recreational athletics,
transportation, health services, recreational activities, special
interest groups or clubs sponsored by the recipient, referrals to
agencies which provide assistance to handicapped persons, and employment
of students, including both employment by the recipient and assistance
in making available outside employment.
(b) Counseling services. Elementary, secondary, and adult education
programs that receive Federal financial assistance and that provide
personal, academic, or vocational counseling, guidance, or placement
services to their students shall provide these services without
discrimination on the basis of handicap and shall ensure that qualified
handicapped students are not counseled toward more restrictive career
objectives than are nonhandicapped students with similar interests and
abilities.
(c) Physical education and athletics. (1) In providing physical
education courses and athletics and similar aid, benefits, or services
to any of its students, an elementary, secondary, or adult education
program or activity that receives Federal financial assistance may not
discriminate on the basis of handicap. A recipient that offers physical
education courses or that operates or sponsors interscholastic, club, or
intramural activities shall provide to qualified handicapped students an
equal opportunity for participation.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different from those
offered to nonhandicapped students only if separation or differentiation
is consistent with the requirements of Sec. 18.434 and only if no
qualified handicapped student is denied the opportunity to compete for
teams or to participate in courses that are not separate or different.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.438 Adult education.
A recipient that provides adult education may not, on the basis of
handicap, exclude qualified handicapped persons. The recipient shall
take into account the needs of these persons in determining the aid,
benefits, or services to be provided.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
[[Page 29]]
Sec. 18.439 Private education.
(a) A recipient that provides private elementary or secondary
education may not on the basis of handicap, exclude a qualified
handicapped person if the person can, with minor adjustments, be
provided an appropriate education, as defined in Sec. 18.433(b)(1),
within that recipient's program or activity.
(b) A recipient may not charge more for providing an appropriate
education to handicapped persons than to nonhandicapped persons except
to the extent that any additional charge is justified by a substantial
increase in cost to the recipient.
(c) A recipient to which this section applies that provides special
education shall do so in accordance with Sec. Sec. 18.435 and 18.436.
Each recipient to which this section applies is subject to Sec. Sec.
18.434, 18.437, and 18.438.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Postsecondary Education
Sec. 18.441 Application.
Sections 18.441 through 18.447 apply to postsecondary education
programs or activities that receive Federal financial assistance from
the Department of Veterans Affairs and to recipients that operate or
receive or benefit from Federal financial assistance for the operation
of such programs or activities.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.442 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of
handicap, be denied admission or be subjected to discrimination in
admission or recruitment by a recipient.
(b) Admission. In administering its admission policies, a recipient;
(1) May not apply limitations on the number or proportion of
handicapped persons who may be admitted;
(2) May not use any test or criterion for admission that has a
disproportionate, adverse effect on handicapped persons or any class of
handicapped persons unless:
(i) The test or criterion, as used by the recipient, has been
validated as a predictor of success in the education program or activity
in question; and
(ii) Alternate tests or criteria that have a less disproportionate,
adverse effect are not shown by the Secretary to be available;
(3) Shall assure itself that:
(i) Admissions tests are selected and administered to best ensure
that, when a test is administered to an applicant who has a handicap
that impairs sensory, manual, or speaking skills, the test results
accurately reflect the applicant's aptitude or achievement level or
whatever other factors the test purports to measure, rather than reflect
the applicant's impaired sensory, manual, or speaking skills (except
where those skills are the factors that the test purports to measure);
(ii) Admissions tests that are designed for persons with impaired
sensory, manual, or speaking skills are offered as often and in as
timely a manner as are other admissions tests; and
(iii) Admissions tests are administered in facilities that, on the
whole, are accessible to handicapped persons; and
(4) Except as provided in paragraph (c) of this section, may not
make preadmission inquiries as to whether an applicant for admission is
a handicapped person. After admission, the recipient may inquire on a
confidential basis as to handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination under
Sec. 18.406(a) or when a recipient is taking voluntary action to
overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity under Sec.
18.406(b), the recipient may invite applicants for admission to indicate
whether and to what extent they are handicapped.
(1) The recipient shall state clearly on any written questionnaire
used for this purpose or make clear orally if no written questionnaire
is used that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary action
efforts; and
(2) The recipient shall state clearly that the information is being
requested
[[Page 30]]
on a voluntary basis, that it will be kept confidential, that refusal to
provide it will not subject the applicant to any adverse treatment, and
that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades,
but shall conduct periodic validity studies against the criterion of
overall success in the education program or activity in question to
monitor the general validity of the test scores.
Sec. 18.443 General treatment of students.
(a) No qualified handicapped student shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any academic,
research, occupational training, housing, health insurance, counseling,
financial aid, physical education, athletics, recreation,
transportation, other extracurricular, or other aid, benefits, or
services operated by a recipient to which this subpart applies.
(b) A recipient that considers participation by students in
education programs or activities not operated wholly by the recipient as
part of, or equivalent to, an education program or activity operated by
the recipient shall assure itself that the other education program or
activity, as a whole, provides an equal opportunity for the
participation of qualified handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis
of handicap, exclude any qualified handicapped student from any course,
course of study, or other part of its education program or activity.
(d) A recipient shall operate its program or activity in the most
integrated setting appropriate.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.444 Academic adjustments.
(a) Academic requirements. A recipient shall make necessary
modifications to its academic requirements to ensure that these
requirements do not discriminate or have the effect of discriminating,
on the basis of handicap, against a qualified handicapped applicant or
student. Modifications may include changes in the length of time
permitted for the completion of degree requirements, substitution of
specific courses required for the completion of degree requirements, and
adaptation of the manner in which specific courses are conducted.
Academic requirements that the recipient can demonstrate are essential
to the instruction being pursued by the student or to any directly
related licensing requirement will not be regarded as discriminatory
within the meaning of this section.
(b) Other rules. A recipient may not impose upon handicapped
students other rules, such as the prohibition of tape recorders in
classrooms or guide dogs in campus buildings, that have the effect of
limiting the participation of handicapped students in the recipient's
education program or activity.
(c) Course examinations. In its course examinations or other
procedures for evaluating students' academic achievement, a recipient
shall provide methods for evaluating the achievement of students who
have a handicap that impairs sensory, manual, or speaking skills that
will best ensure that the results of the evaluation represent the
students' achievement in the course, rather than reflect the students'
impaired sensory, manual, or speaking skills (except where such skills
are the factors that the test purports to measure).
(d) Auxiliary aids. (1) A recipient shall ensure that no qualified
handicapped student is denied the benefits of, excluded from
participation in, or otherwise subjected to discrimination because of
the absence of educational auxiliary aids for students with impaired
sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other
effective methods of making orally delivered materials available to
students with hearing impairments, readers in libraries for students
with visual impairments, classroom equipment adapted for use by students
with manual impairments, and other similar services and actions.
Recipients need not provide attendants, individually prescribed devices,
readers for personal
[[Page 31]]
use or study, or other devices or services of a personal nature.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.445 Housing.
(a) Housing provided by a recipient. A recipient that provides
housing to its nonhandicapped students shall provide comparable,
convenient, and accessible housing to qualified handicapped students at
the same cost as to others. At the end of the transition period provided
for in Sec. 18.422(e), this housing shall be available in sufficient
quantity and variety so that the scope of handicapped students' choice
of living accommodations is, as a whole, comparable to that of
nonhandicapped students.
(b) Other housing. A recipient that assists any agency,
organization, or person in making housing available to any of its
students shall assure itself that such housing is, as a whole, made
available in a manner that does not result in discrimination on the
basis of handicap.
Sec. 18.446 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped persons, a recipient may not:
(i) On the basis of handicap, provide less assistance than is
provided to nonhandicapped persons, limit eligibility for assistance, or
otherwise discriminate; or
(ii) Assist any entity or person that provides assistance to any of
the recipient's students in a manner that discriminates against
qualified handicapped persons on the basis of handicap.
(2) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established under wills, trusts, bequests, or similar legal instruments
that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap only if
the overall effect of the award of scholarships, fellowships, and other
forms of financial assistance is not discriminatory on the basis of
handicap.
(b) Assistance in making available outside employment. A recipient
that assists any agency, organization, or person in providing employment
opportunities to any of its students shall assure itself that these
employment opportunities, as a whole, are made available in a manner
that would not violate Sec. Sec. 18.411 through 18.414 if the
opportunities were provided by the recipient.
(c) Employment of students by recipients. A recipient that employs
any of its students may not do so in a manner that violates Sec. Sec.
18.411 through 18.414.
Sec. 18.447 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar aid, benefits, or services
to any of its students, a recipient may not discriminate on the basis of
handicap. A recipient that offers physical education courses or that
operates or sponsors intercollegiate, club or intramural athletics shall
provide to qualified handicapped students an equal opportunity for
participation in these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different only if
separation or differentiation is consistent with the requirements of
Sec. 18.443(d) and only if no qualified handicapped student is denied
the opportunity to compete for teams or to participate in courses that
are not separate or different.
(b) Counseling and placement services. A recipient that provides
personal, academic, or vocational counseling, guidance, or placement
services to its students shall provide these services without
discrimination on the basis of handicap. The recipient shall ensure that
qualified handicapped students are not counseled toward more restrictive
career objectives than are nonhandicapped students with similar
interests and abilities. This requirement does not preclude a recipient
from providing factual information about licensing and certification
requirements that may present obstacles to handicapped persons in their
pursuit of particular careers.
(c) Social organizations. A recipient that provides significant
assistance to
[[Page 32]]
fraternities, sororities, or similar organizations shall assure itself
that the membership practices of these organizations do not permit
discrimination otherwise prohibited by Sec. Sec. 18.441 through 18.447.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Health and Social Services
Sec. 18.451 Application.
Subpart F applies to health, and other social service programs or
activities that receive Federal financial assistance from the Department
of Veterans Affairs and to recipients that operate or receive Federal
financial assistance for the operation of such programs or activities.
[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]
Sec. 18.452 Health and other social services.
(a) General. In providing health, or other social services or
benefits, a recipient may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;
(2) Give a qualified handicapped person the opportunity to receive
benefits or services that are not equal to those offered nonhandicapped
persons.
(3) Provide a qualified handicapped person with benefits or services
that are not as effective (as defined in Sec. 18.404(b)(2)) as the
benefits or services provided to others;
(4) Provide benefits or services in a manner that limits or has the
effect of limiting the participation of qualified handicapped persons;
or
(5) Provide different or separate benefits or services to
handicapped persons except where necessary to provide qualified
handicapped persons with benefits and services that are as effective as
those provided to others.
(b) Notice. A recipient that provides notice concerning benefits or
services or written material concerning waivers of rights of consent to
treatment shall ensure that qualified handicapped persons, including
those with impaired sensory or speaking skills, are not denied effective
notice because of their handicap.
(c) Emergency treatment for the hearing impaired. A recipient
hospital that provides health services or benefits shall establish a
procedure for effective communication with persons with impaired hearing
for the purpose of providing emergency care.
(d) Auxiliary aids. (1) A recipient that employs fifteen or more
persons shall provide appropriate auxiliary aids to persons with
impaired sensory, manual, or speaking skills, where necessary to give
these persons an equal opportunity to benefit from the service in
question.
(2) The Secretary may require recipients with fewer than fifteen
employees to provide auxiliary aids where the provision of aids would
not significantly impair the ability of the recipient to provide its
benefits or services.
(3) Auxiliary aids may include brailled and taped material,
interpreters, and aids for persons with impaired hearing or vision.
Sec. 18.453 Drug and alcohol addicts.
A recipient that operates a general hospital or outpatient facility
may not discriminate, with regard to a drug or alcohol abuser or
alcoholic who is suffering from a medical condition, in the admission of
that person for treatment of the medical condition, or in the treatment
of the medical condition because of the person's drug or alcohol abuse
or alcoholism.
Sec. 18.454 Education of institutionalized persons.
A recipient that operates or supervises a program or activity that
provides aid, benefits, or services for persons who are
institutionalized because of handicap and is responsible for providing
training shall ensure that each qualified handicapped person, as defined
in Sec. 18.403(k)(2), in its program or activity that provides aid,
benefits, or services is provided an appropriate education, as defined
in Sec. 18.433(b). Nothing in this section shall be interpreted as
altering in any way the obligations of recipients under Sec. Sec.
18.431 through 18.439.
[45 FR 63268, Sept. 24, 1980; 51 FR 12702, Apr. 15, 1986; 68 FR 51370,
Aug. 26, 2003]
[[Page 33]]
Procedures
Sec. 18.461 Procedures.
The procedural provisions applicable to Title VI of the Civil Rights
Act of 1964 apply to this part. These procedures are found in Sec. Sec.
18.6 through 18.11 and part 18b of this chapter.
Appendix A to Subpart D of Part 18--Statutory Provisions to Which This
Part Applies
1. Payments to State Homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home, and
hospital care (38 U.S.C. 8131-8137).
3. Transfers for nursing home care; adult day health care (38 U.S.C.
1720).
4. Sharing of medical facilities, equipment, and information (38 U.S.C.
8151-8157).
5. Assistance in establishing new state medical schools, grants to
affiliated medical schools; assistance to health manpower
training institutions (38 U.S.C. Chapter 82).
6. Approval of educational institutions (38 U.S.C. 104).
7. Medical care for survivors and dependents of certain veterans (38
U.S.C. 1713).
8. Space and office facilities for representatives of State employment
service (38 U.S.C. 7725(4)).
9. Space and office facilities for representatives of recognized
national service organizations (38 U.S.C. 5902(a)(2)).
10. All-volunteer force educational assistance, vocational
rehabilitation post-Vietnam era veterans educational
assistance; veterans educational assistance, survivors' and
dependents' educational assistance, and administration of
educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35
and 36 respectively).
11. Treatment and rehabilitation for alcohol or drug dependence or abuse
disabilities (38 U.S.C. 1720A).
12. Aid to States for establishment, expansion, and improvement of
veterans cemeteries (38 U.S.C. 2408).
13. Department of Veterans Affairs health professional scholarship
program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-452).
[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986;
51 FR 12702, Apr. 15, 1986]
Subpart E_Nondiscrimination on the Basis of Age
Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C.
6101, et seq.; 45 CFR part 90 (1979).
Source: 50 FR 34133, Aug. 23, 1985, unless otherwise noted.
General
Sec. 18.501 Purpose.
The purpose of these regulations is to set out Department of
Veterans Affairs (VA) policies and procedures under the Age
Discrimination Act of 1975 and the governmentwide age discrimination
regulations at 45 CFR part 90. The Act and the governmentwide
regulations prohibit discrimination on the basis of age in programs or
activities receiving Federal financial assistance. The Act and the
governmentwide regulations permit federally assisted programs or
activities, and recipients of Federal funds, to continue to use age
distinctions and factors other than age which meet the requirements of
the Act and its implementing regulations.
(Authority: 42 U.S.C. 6101-6107)
[50 FR 34133, Aug. 23, 1985, as amended at 54 FR 34984, Aug. 23, 1989;
68 FR 51372, Aug. 26, 2003]
Sec. 18.502 Application.
(a) These regulations apply to any program or activity receiving
Federal financial assistance provided by VA directly or through another
recipient.
(b) These regulations do not apply to:
(1) An age distinction contained in that part of a Federal, State,
or local statute or ordinance adopted by an elected, general purpose
legislative body which:
(i) Provides any benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in age-
related terms.
(2) Any employment practice of any employer, employment agency,
labor organization, or any labor-management joint apprenticeship
training program, except any program or activity receiving Federal
financial assistance for public service employment under
[[Page 34]]
the Job Training Partnership Act, 29 U.S.C. 1501, et seq.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.503 Definitions.
As used in these regulations:
(a) Act means the Age Discrimination Act of 1975, as amended (Title
III of Pub. L. 94-135, 42 U.S.C. 6101-6107).
(b) Action means any act, activity, policy, rule, standard, or
method of administration; or the use of any policy, rule, standard, or
method of administration.
(c) Secretary means the Secretary of Veterans Affairs or designees.
(d) Age means how old a person is, or the number of elapsed years
from the date of a person's birth.
(e) Age discrimination means unlawful treatment based on age.
(f) Age distinction means any action using age or an age-related
term.
(g) Age-related term means a word or words which necessarily imply a
particular age or range of ages (for example, children, adult, older
persons, but not student).
(h) Day means calendar day.
(i) Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which a
Federal agency or department provides or otherwise makes available
assistance in the form of:
(1) Funds; or
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of
property, including:
(i) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of property if the
Federal share of its market value is not returned to the Federal
Government.
(j) Program or activity means all of the operations of any entity
described in paragraphs (j)(1) through (4) of this section, any part of
which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other State
or local government entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or
a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801),
system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity that is established by two or more of the
entities described in paragraph (j)(1), (2), or (3) of this section.
(k) Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended, directly or
through another recipient. Recipient includes any successor, assignee,
or transferee, but excludes the ultimate beneficiary of the assistance.
(l) Subrecipient means any of the entities in the definition of
recipient to which a recipient extends or passes on Federal financial
assistance. A subrecipient is generally regarded as a recipient of
Federal financial assistance and has all the duties of a recipient in
these regulations.
(m) United States means the fifty States, the District of Columbia,
Puerto Rico, the Virgin Islands, the Canal
[[Page 35]]
Zone, the Trust Territories of the Pacific Islands, the Northern
Marianas, and the territories and possessions of the United States.
(Authority: 42 U.S.C. 6101-6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51371, Aug. 26, 2003]
Standards for Determining Age Discrimination
Sec. 18.511 Rules against age discrimination.
The rules in this section are limited by the exceptions contained in
Sec. Sec. 18.513 and 18.514 of these regulations.
(a) General rule. No person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under, any program or activity receiving
Federal financial assistance.
(b) Specific rules. A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through contractual
licensing, or other arrangements, use age distinctions or take any other
actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of, or
subjecting them to discrimination under, a program or activity receiving
Federal financial assistance; or
(2) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving Federal financial
assistance.
(c) The specific forms of age discrimination listed in paragraph (b)
of this section do not necessarily constitute a complete list.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.512 Definitions of ``normal operation'' and ``statutory objective.''
For the purpose of these regulations, the terms normal operation and
statutory objective shall have the following meaning:
(a) Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objectives.
(b) Statutory objective means any purpose of a program or activity
expressly stated in any Federal statute, State statute, or local statute
or ordinance adopted by an elected, general purpose legislative body.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.513 Exceptions to the rules against age discrimination; normal
operation or statutory objective of any program or activity.
A recipient is permitted to take an action, otherwise prohibited by
Sec. 18.511, if the action reasonably takes into account age as a
factor necessary to the normal operation or the achievement of any
statutory objective of a program or activity. An action reasonably takes
into account age as a factor necessary to the normal operation or the
achievement of any statutory objective of a program or activity, if:
(a) Age is used as a measure or approximation of one or more other
characteristics; and
(b) The other characteristic(s) must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly
on an individual basis.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.514 Exceptions to the rules against age discrimination;
reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by
Sec. 18.511 which is based on a factor other than age, even though that
action may have a disproportionate effect on persons of different ages.
An action may be based on a factor other than age only if the factor
bears a direct and substantial relationship to the normal operation of
the program or activity or to the achievement of a statutory objective.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.515 Burden of proof.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in Sec. Sec. 18.513 and
[[Page 36]]
18.514 is on the recipient of Federal financial assistance.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.516 Affirmative action by recipients.
Even in the absence of a finding of discrimination, a recipient may
take affirmative action to overcome the effects of conditions that
resulted in limited participation in the recipient's program or activity
on the basis of age.
(Authority: 42 U.S.C. 6101-6107)
Responsibilities of Department of Veterans Affairs Recipients
Sec. 18.531 General responsibilities.
Each VA recipient must ensure that its programs or activities are in
compliance with the Act and these regulations.
(Authority: 42 U.S.C. 6101-6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 18.532 Notice of subrecipients.
Where a recipient passes on Federal financial assistance from VA to
programs or activities of subrecipients, the recipient shall provide the
subrecipients written notice of their obligations under the Act and
these regulations with respect to such programs and activities.
(Approved by the Office of Management and Budget under control number
2900-0400)
(Authority: 42 U.S.C. 6101-6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 18.533 Assurance of compliance and recipient assessment of age
distinctions.
(a) Each recipient of Federal financial assistance from VA shall
sign a written assurance as specified by the Secretary that it will
comply with the Act and these regulations.
(b) Recipient assessment of age distinctions. (1) As part of a
compliance review under Sec. 18.541 or complaint investigation under
Sec. 18.544, the Secretary may require a recipient employing the
equivalent of 15 of more employees to complete a written self-
evaluation, in a manner specified by the responsible agency official, of
any age distinction imposed in its programs or activities receiving
Federal financial assistance from VA to assess the recipient's
compliance with the Act.
(2) Whenever an assessment indicates a violation of the Act or these
regulations, the recipient shall take corrective action.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.534 Information requirements.
Each recipient shall:
(a) Make available upon request to VA information necessary to
determine whether the recipient is complying with the Act and these
regulations.
(b) Permit reasonable access by VA to the books, records, accounts,
and other recipient facilities and sources of information to the extent
necessary to determine whether the recipient is in compliance with the
Act and these regulations.
(Authority: 42 U.S.C. 6101-6107)
Investigation, Conciliation, and Enforcement Procedures
Sec. 18.541 Compliance reviews.
(a) VA may conduct compliance reviews and preaward reviews of
recipients or use other similar procedures that will permit it to
investigate and correct violations of the Act and these regulations. VA
may conduct these reviews even in the absence of a complaint against a
recipient. The review may be as comprehensive as necessary to determine
whether a violation of these regulations has occurred.
(b) If a compliance review or preaward review indicates a violation
of the Act or these regulations, VA will attempt to achieve voluntary
compliance with the Act. If voluntary compliance cannot be achieved, VA
may institute enforcement proceedings as described in Sec. 18.546.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.542 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a complaint with VA alleging discrimination
prohibited by the Act or these regulations based on an action occurring
on or after July 1,
[[Page 37]]
1979. A complainant shall file a complaint within 180 days from the date
the complainant first had knowledge of the alleged act of
discrimination. However, for good cause shown, VA may extend this time
limit. Complaints may be submitted to the Director, Office of Equal
Opportunity (06B), Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420.
(b) VA will attempt to facilitate the filing of complaints wherever
possible, including taking the following measures:
(1) Acknowledging receipt and acceptance of a complaint in writing.
(2) Accepting as a sufficient complaint, any written statement which
identifies the parties involved and the date the complainant first had
knowledge of the alleged violation, describes generally the action or
practice complained of, and is signed by the complainant.
(3) Freely permitting a complainant to add information to the
complaint to meet the requirements of a sufficient complaint.
(4) Widely disseminating information regarding the obligations of
recipients under the Act and these regulations.
(5) Notifying the complainant and the recipient of their rights and
obligations under the complaint procedure, including the right to have a
representative at all stages of the complaint procedure.
(6) Notifying the complainant and the recipient (or their
representatives) of their right to contact VA for information and
assistance regarding the complaint resolution process.
(c) VA will refer a complaint of discrimination based on age to
another appropriate Federal agency when the complaint is outside the
jurisdiction of VA. VA will notify the complainant in writing that the
complaint has been referred; explain the reason why the complaint is not
within the jurisdiction of VA; and give the complainant the name,
agency, and address of the official to whom the complaint was referred.
(Approved by the Office of Management and Budget under control number
2900-0401)
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.543 Mediation.
(a) Referral of complaints for mediation. VA will refer to the
Federal Mediation and Conciliation Service all complaints that:
(1) Fall within the jurisdiction of the Act and these regulations;
and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement or make
an informed judgment that an agreement is not possible. However, the
recipient and the complainant need not meet with the mediator at the
same time.
(c) If the complainant and the recipient reach an agreement, the
mediator shall prepare a written statement of the agreement and have the
complainant and the recipient sign it. The mediator shall send a copy of
the agreement to VA. VA will take no further action on the complaint
unless the complainant or the recipient fails to comply with the
agreement.
(d) The mediator shall protect the confidentiality of all
information obtained in the course of the mediation process. No mediator
shall testify in any adjunctive proceeding, produce any document, or
otherwise disclose any information obtained in the course of the
mediation process without prior approval of the head of the mediation
agency.
(e) VA will use the mediation process for a maximum of 60 days after
the responsible agency official receives a complaint.
(f) Mediation ends if:
(1) 60 days elapse from the time the responsible agency official
receives the complaint; or
(2) Prior to the end of that 60-day period, an agreement is reached;
or
(3) Prior to the end of that 60-day period, the mediator determines
that an agreement cannot be reached.
(g) The mediator shall return unresolved complaints to VA.
(Authority: 42 U.S.C. 6101-6107)
[[Page 38]]
Sec. 18.544 Investigation.
(a) Informal investigation. (1) VA will investigate complaints that
are reopened because of a violation of a mediation agreement.
(2) As part of the initial investigation VA will use informal fact
finding methods, including joint or separate discussions with the
complainant and recipient to establish the facts and, if possible,
settle the complaint on terms that are mutually agreeable to the
parties. VA may seek the assistance of any involved State agency.
(3) VA will put any agreement in writing and have it signed by the
parties and an authorized official from the VA.
(4) The settlement shall not affect the operation of any other
enforcement effort of VA, including compliance reviews and investigation
of other complaints which may involve the recipient.
(5) A settlement need not contain an admission of discrimination or
other wrongdoing by the recipient nor should it be considered a finding
of discrimination against the recipient.
(b) Formal investigation. If VA cannot resolve the complaint through
informal investigation, it will begin to develop formal findings through
further investigation of the complaint. If the investigation indicates a
violation of these regulations, VA will attempt to obtain voluntary
compliance. If voluntary compliance cannot be achieved, VA may institute
enforcement proceedings as described in Sec. 18.546.
(Authority: 42 U.S.C. 6101-6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 18.545 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation
against any person who:
(a) Attempts to assert a right protected by the Act or these
regulations; or
(b) Cooperates in any mediation, investigation, hearing, or other
part of VA's investigation, conciliation, and enforcement process.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.546 Compliance procedure.
(a) VA may enforce the Act and these regulations through:
(1) Termination of Federal financial assistance from VA with respect
to a recipient's program or activity that has violated the Act or these
regulations. The determination of the recipient's violation may be made
only after a recipient has had an opportunity for a hearing on the
record before an administrative law judge. Therefore, cases which are
settled in mediation, or prior to a hearing, will not involve
termination of a recipient's Federal financial assistance from VA.
(2) Any other means authorized by law including but not limited to:
(i) Referral to the Department of Justice for proceedings to enforce
any rights of the United States or obligations of the recipient created
by the Act or these regulations.
(ii) Use of any requirement of or referral to any Federal, State, or
local government agency that will have the effect of correcting a
violation of the Act or these regulations.
(b) VA will limit any termination under paragraph (a)(1) of this
section to the particular program or activity or part of such program or
activity of a recipient that VA finds to be in violation of the Act or
these regulations. VA will not base any part of a termination on a
finding with respect to any program or activity of the recipient which
does not receive Federal financial assistance from VA.
(c) VA will take no action under paragraph (a) of this section
until:
(1) The Secretary has advised the recipient of its failure to comply
with the Act and these regulations and has determined that voluntary
compliance cannot be obtained.
(2) Thirty days have elapsed after the Secretary has sent a written
report of the circumstances and grounds of the action to the committees
of the Congress having legislative jurisdiction over the program or
activity involved. The Secretary will file a report whenever any action
is taken under paragraph (a) of this section.
(d) VA also may defer granting new Federal financial assistance from
VA to a recipient when a hearing under
[[Page 39]]
paragraph (a)(1) of this section is initiated.
(1) New Federal financial assistance from VA includes all assistance
for which VA requires an application or approval, including renewal or
continuation of existing activities, or authorization of new activities
during the deferral period. New Federal financial assistance from VA
does not include increases in funding resulting solely from a change in
the formula or method of computing awards, nor does it include
assistance approved prior to the beginning of a hearing under paragraph
(a)(1) of this section.
(2) VA will not begin a deferral until the recipient has received a
notice of an opportunity for a hearing under paragraph (a)(1) of this
section. VA will not continue a deferral for more than 60 days unless a
hearing has begun within that time or the time for beginning the hearing
has been extended by mutual consent of the recipient and the Secretary.
VA will not continue a deferral for more than 30 days after the close of
the hearing, unless the hearing results in a finding against the
recipient.
(Authority: 42 U.S.C. 6101-6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 18.547 Hearings, decisions, post-termination proceedings.
Certain VA procedural provisions applicable to Title VI of the Civil
Rights Act of 1964 apply to VA enforcement of these regulations. They
are found at Sec. Sec. 18.9 through 18.11 and part 18b of this title.
(Authority: 42 U.S.C. 6101-1607)
Sec. 18.548 Remedial action by recipient.
Where VA finds that a recipient has discriminated on the basis of
age, the recipient shall take any remedial action that VA may require to
overcome the effects of the discrimination. If another recipient
exercises control over the recipient that has discriminated, VA may
require both recipients to take remedial action.
(Authority: 42 U.S.C. 6101-1607)
Sec. 18.549 Alternate funds disbursal procedure.
(a) When VA withholds funds from a recipient under these
regulations, the Secretary may disburse the withheld funds directly to
an alternate recipient: Any public or non-profit private organization or
agency, or State or political subdivision of the State.
(b) The Secretary will require any alternate recipient to
demonstrate;
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the Federal statute
authorizing the Federal financial assistance.
(Authority: 42 U.S.C. 6101-1607)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
Sec. 18.550 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion
of administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and VA has made no finding with regard to the complaint; or
(2) VA issues any finding in favor of the recipient.
(b) If VA fails to make a finding within 180 days or issues a
finding in favor of the recipient, VA will:
(1) Promptly advise the complainant of this fact; and
(2) Advise the complainant of his or her right to bring a civil
action for injunctive relief; and
(3) Inform the complainant that:
(i) The complainant may bring a civil action only in a United States
district court for the district in which the recipient is found or
transacts business;
(ii) A complainant prevailing in a civil action has the right to be
awarded the costs of the action, including reasonable attorney's fees,
but the complainant must demand these costs in the complaint;
(iii) Before commencing the action, the complainant shall give 30
days notice by registered mail to the Secretary, the Attorney General of
the United States, and the recipient;
[[Page 40]]
(iv) The notice must state: The alleged violation of the Act; the
relief requested; the court in which the complainant is bringing the
action; and, whether or not attorney's fees are demanded in the event
the complainant prevails; and
(v) The complainant may not bring action if the same alleged
violations of the Act by the same recipient is the subject of a pending
action in any court of the United States.
(Authority: 42 U.S.C. 6101-6107)
Appendix A to Subpart E of Part 18--Statutory Provisions to Which This
Subpart Applies
1. Approval of educational institutions (38 U.S.C. 104).
2. Space and office facilities for representatives of State
employment services (38 U.S.C. 7725(1)).
3. Medical care for survivors and dependents of certain veterans (38
U.S.C. 1713).
4. Transfers for nursing home care; adult day health care (38 U.S.C.
1720).
5. Treatment and rehabilitation for alcohol or drug dependence or
abuse disabilities (38 U.S.C. 1720A).
6. Payments to State Homes (38 U.S.C. 1741-1743).
7. Aid to States for establishment, expansion, and improvement of
veterans' cemeteries (38 U.S.C. 2408).
8. Vocational Rehabilitation; Post-Vietnam Era Veterans' Educational
Assistance; Survivors' and Dependents' Educational Assistance; and
Administration of Educational Benefits (38 U.S.C. Chapters 31, 32, 34,
35 and 36 respectively).
9. Space and office facilities for representatives of recognized
national organizations (38 U.S.C. 5902(a)(2)).
10. Department of Veterans Affairs Health Professional Scholarship
Program (38 U.S.C. 7601-7655).
11. State Home Facilities for Furnishing Domiciliary, Nursing Home
and Hospital Care (38 U.S.C. 8131-8137).
12. Sharing of Medical Facilities, Equipment and Information (38
U.S.C. 8151-8157).
13. Assistance in Establishing New State Medical Schools; Grants to
Affiliated Medical Schools; Assistance to Health Manpower Training
Institutions (38 U.S.C. Chapter 82).
14. Emergency Veterans' Job Training (Pub. L. 98-77, 97 Stat. 443-
452).
Appendix B to Subpart E of Part 18--List of Age Distinctions Contained
in Statutes and Regulations Governing Federal Financial Assistance of
the Department of Veterans Affairs
Section 90.31(f) of the governmentwide regulations (45 CFR part 90)
requires each Federal agency to publish an appendix to its final
regulations containing a list of age distinctions in Federal statutes
and regulations affecting financial assistance administered by the
agency. This appendix is VA's list of age distinctions contained in
Federal statutes and VA regulations which:
(1) Provide benefits or assistance to persons based upon age; or
(2) Establish criteria for participation in age-related terms; or
(3) Describe intended beneficiaries or target groups in age-related
terms.
Appendix B deals only with VA's programs of financial assistance
covered by the Age Discrimination Act. It does not list age distinctions
used by VA in its direct assistance programs, such as veterans'
compensation. Also, this appendix contains only age distinctions in
Federal statutes and VA regulations in effect on January 1, 1985.
This appendix has two sections: A list of age distinctions in
Federal statutes, and a list of age distinctions in VA regulations. The
first column contains the name of the program; the second column has the
statute name and U.S. Code citation for statutes, or the regulation name
and Code of Federal Regulations citation for regulations; the third
column contains the section number of the statute or regulation and the
description of the age distinction; and the fourth column cites the
Catalog of Federal Domestic Assistance number for the program(s)
affected where it is available.
[[Page 41]]
Age Distinctions in Statutes Governing Federal Financial Assistance Programs of the Department of Veterans
Affairs
----------------------------------------------------------------------------------------------------------------
Program Statute Section and Age Distinction CFDA
----------------------------------------------------------------------------------------------------------------
Veterans' Benefits...................... Section 101 of the Section 101(4)(A) defines the
Veterans' Benefits Act of term ``child'' for the purposes
1957, as amended; 38 of Title 38, U.S.C. (except for
U.S.C. 101. chapter 19 and section 8502(b)
of Title 38) as ``a person who
is unmarried and--(i) who is
under the age of eighteen
years; (ii) who, before
attaining the age of eighteen
years, became permanently
incapable of self-support; or
(iii) who, after attaining the
age of eighteen years and until
completion of education or
training (but not after
attaining the age of twenty-
three years), is pursuing a
course of instruction at an
approved educational
institution; and who is a
legitimate child, a legally
adopted child, a stepchild who
is a member of a veteran's
household or was a member at
the time of the veteran's
death, or an illegitimate child
but, as to the alleged father,
only if acknowledged in writing
signed by him, or if he has
been judicially ordered to
contribute to the child's
support or has been, before his
death, judicially decreed to be
the father of such child, or if
he is otherwise shown by
evidence statisfactory to the
Secretary to be the father or
such child. . . .''.
Section 101(4)(B) provides that
for the purposes of section
101(4)(A) of Title 38, in the
case of an adoption under the
laws of any jurisdiction other
than a State, a person residing
outside any of the States shall
not be considered a legally
adopted child of a veteran
during the lifetime of that
veteran, unless, among other
things, such a person was less
than eighteen years of age at
the time of the adoption.
Approval of Educational Institutions.... Section 104 of the Section 104(a) authorizes the
Veterans' Benefits Act of Secretary to approve or
1957, as amended, 38 disapprove an educational
U.S.C. 104. institution for the purpose of
determining whether or not
benefits are payable under
Title 38, U.S.C. (except
chapter 15 of title 38) for a
child over the age of eighteen
years and under the age of
twenty-three years who is
attending a school, college,
academy, seminary, technical
institution, university, or
other educational institution.
Section 104(b) provides that the
Secretary may not approve an
educational institution under
section 104 of Title 38, unless
the institution has agreed to
report the termination of
attendance of any child. If the
educational institution fails
to report any such termination
promptly, the approval of the
Secretary shall be withdrawn.
Civilian Health and Medical Program of Section 103(b) of the Section 1713(a) authorizes the 64.009
the Department of Veterans Affairs Veterans Health Care Secretary to provide medical
(CHAMPA). Expansion Act of 1973, as care to: ``(1) The spouse or
amended; 38 U.S.C. 1713. child of a veteran who has a
total disability, permanent in
nature, resulting from a
service-connected disability,
(2) the surviving spouse or
child of a veteran who (A) died
as a result of a service-
connected disability, or (B) at
the time of death had a total
disability permanent in nature,
resulting from a service-
connected disability, and (3)
the surviving spouse or child
of a person who died in the
active military, naval, or air
service in the line of duty and
not due to such person's own
misconduct, who are not
otherwise eligible for medical
care under Chapter 55 of Title
10, U.S.C. (CHAMPUS).
[[Page 42]]
Section 1713(c) provides that
for the purposes of this
program, ``a child between the
ages of eighteen and twenty-
three (1) who is eligible for
benefits under subsection (a)
of this section, (2) who is
pursuing a full-time course of
instruction at an educational
institution, approved under
Chapter 36 of this title, and
(3) who while pursuing such
course of instruction, incurs a
disabling illness or injury . .
. which results in such child's
inability to continue or resume
such child's chosen program of
education . . . shall remain
eligible for benefits under
this section until the end of
the six-month period beginning
on the date the disability is
removed, the end of the two-
year period beginning on the
date of the onset of the
disability, or the twenty-third
birthday of the child,
whichever occurs first''.
VA Hospital, Domiciliary or Nursing Home Section 510 of the Section 1710 authorizes the 64.009
Care. Veterans' Benefits Act of Secretary, within the limits of 64.010
1957, amended; 38 U.S.C. VA facilities, to furnish 64.015
1710. hospital care or nursing home 64.016
care. Among the persons
eligible for such care are
veterans with a nonservice-
connected disability if they
are sixty-five years of age or
older.
Post-Vietnam Era Veterans' Educational Post Vietnam Era Veterans' Section 3201 states that the 64.120
Assistance. Educational Act of 1977, purpose of Chapter 32 of Title
as amended; U.S.C. Chapter 38, U.S.C. is: ``(1) To provide
32. educational asssistance to
those men and women who enter
the Armed Forces after December
31, 1976, (2) to assist young
men and women in obtaining an
education they might not
otherwise be able to afford,
and (3) to promote and assist
the all volunteer military
program of the United States by
attracting qualified men and
women to serve in the Armed
Forces''.
Veterans' Educational Assistance........ Section 2 of the Veterans' Section 3451 states that the 64.111
Readjustment Benefits Act education program created by
of 1966, amended; 38 this chapter is for the purpose
U.S.C. Chapter 34. of: `` . . . (1) Enhancing and
making more attractive service
in the Armed Forces of the
United States, (2) extending
the benefits of higher
education to qualified and
deserving young persons who
might not otherwise be able to
afford such an education, (3)
providing vocational
readjustment and restoring lost
educational opportunities to
those service men and women
whose careers have been
interrupted or impeded by
reason of active duty after
January 31, 1955, and (4)
aiding such persons in
attaining the vocational and
educational status which they
might normally have aspired to
and obtained had they not
served their country''.
Section 3492(b) authorizes the
Secretary to pay to an eligible
veteran receiving tutorial
assistance pursuant to section
3492(a) of this chapter, the
cost of such tutorial
assistance, subject to certain
limits, upon certification by
the educational institution
that `` . . . (2) the tutor
chosen to perform such
assistance is qualified and is
not the eligible veteran's
parent, spouse, child (whether
or not married or over eighteen
years of age), brother, or
sister; and (3) the charges for
such assistance do not exceed
the customary charges for such
tutorial assistance''.
[[Page 43]]
Survivors' and Dependents' Educational War Orphans' Educational Section 3500 states that ``the 64.117
Assistance. Assistance Act of 1956, as educational program established
amended; 38 U.S.C. Chapter by this chapter is for the
35. purpose of providing
opportunities for education to
children whose education would
otherwise be impeded or
interrupted by reason of the
disability or death of a parent
from a disease or injury
incurred or aggravated in the
Armed Forces after the
beginning of the Spanish-
American War, and for the
purpose of aiding such children
in attaining the educational
status which they might have
aspired to and attained but for
the disability or death of such
parent. The Congress further
declares that the educational
program extended to the
surviving spouses of veterans
who died of service-connected
total disabilities and to
spouses of veterans with a
service-connected total
disability permanent in nature
is for the purpose of assisting
them in preparing to support
themselves and their families
at a standard of living level
which the veteran, but for the
veteran's death or service
disability, could have expected
to provide for the veteran's
family''.
Section 3501 defines the term
``eligible person'' as: ``(A) a
child of a person who--(i) died
of a service-connected
disability, (ii) has a total
disability permanent in nature
resulting from a service-
connected disability, or who
died while a disability so
evaluated was in existence or
(iii) at the time of
application for benefits under
this chapter is a member of the
Armed Forces serving on active
duty listed, pursuant to
section 556 of Title 37
[U.S.C.] and regulations issued
thereunder, by the Secretary
concerned in one or more of the
following categories . . . for
a total of ninety days: (A)
missing in action, (B) captured
in line of duty by a hostile
force, or (C) forcibly detained
or interned in line of duty by
a foreign government or power,
. . .'' Subparagraph (a)(2) of
this section provides that the
term ``child'' includes
individuals who are married and
individuals who are above the
age of twenty-three years.
[[Page 44]]
Section 3512 establishes periods
of eligibility. Provides that
the educational program to
which an eligible child within
the meaning of this chapter is
entitled to may be afforded,
``. . . during the period
beginning on the person's
eighteenth birthday, or on the
successful completion of the
person's secondary schooling,
whichever first occurs, and
ending on the person's twenty-
sixth birthday, except that--
(1) if the person is above the
age of compulsory school
attendance under applicable
State law, and the Secretary
determines that the person's
best interests will be served
thereby, such period may begin
before the person's eighteenth
birthday; (2) if the person has
a mental or physical handicap,
and . . . the person's best
interests will be served by
pursuing a program of special
restorative training or a
specialized course of
vocational training approved
under section 3536 of this
title, such period may begin
before the person's fourteenth
birthday; (3) if the Secretary
finds that the parent from whom
eligibility is derived has a
service-connected total
disability permanent in nature,
or if the death of the parent
from whom eligibility is
derived occurs, after the
eligible person's eighteenth
birthday but before the
person's twenty-sixth birthday,
then (unless paragraph (4)
applies) such period shall end
8 years after, whichever date
last occurs: (A) the date on
which the Secretary first finds
that the parent from whom
eligibility is derived has a
service-connected total
disability permanent in nature,
or (B) the date of death of the
parent from whom eligibility is
derived; (4) if the person
serves on duty with the Armed
Forces as an eligible person
after the person's eighteenth
birthday but before the
person's twenty-sixth birthday,
then such period shall end 8
years after the person's first
discharge or release from such
duty with the Armed Forces . .
. in no event shall such period
be extended beyond the person's
thirty-first birthday by reason
of this paragraph; and (5)(A)
if the person becomes eligible
by reason of the the provisions
of section 3501(a)(1)(A)(ii) of
this title after the person's
eighteenth birthday but before
the person's twenty-sixth
birthday, then (unless clause
(4) of this section applies)
such period shall end eight
years after the date on which
the person becomes eligible by
reason of such provisions, but
in no event shall such period
be extended beyond the person's
thirty-first birthday by reason
of this clause. . . .''.
Section 3513 provides that the
parent or guardian of a person
or the eligible person (if such
person has attained legal
majority) for whom the
educational assistance is
sought under Chapter 35 shall
submit an application to the
Secretary, which shall be in
such form and contain such
information as the Secretary
shall prescribe.
[[Page 45]]
Section 3562 provides that the
commencement of a program of
education or special
restorative training under
Chapter 35 shall be a bar,
``(1) to subsequent payments of
compensation, dependency and
indemnity compensation, or
pension based on a death of a
parent to an eligible person
over the age of eighteen by
reason of pursuing a course in
an educational institution, or
(2) to increased rates, or
additional amounts of
compensation, dependency and
indemnity compensation, or
pension because of such a
person whether eligibility is
based upon the death or upon
the total permanent disability
of the parent''.
Section 3563 states that ``The
Secretary shall notify the
parent or guardian of each
eligible person as defined in
section 3501(a)(1)(A) of this
title of the educational
assistance available to such
person under Chapter 35. Such
notification shall be provided
not later then the month in
which such eligible person
attains such person's
thirteenth birthday or as soon
thereafter as feasible''.
----------------------------------------------------------------------------------------------------------------
Age Distinctions in Regulations Governing Federal Financial Assistance Programs of the Department of Veterans
Affairs
----------------------------------------------------------------------------------------------------------------
Program Regulation Section and Age Distinction CFDA
----------------------------------------------------------------------------------------------------------------
Veterans' Benefits...................... Adjudication (38 CFR part Section 3.57 defines the term
3). ``child'' of a veteran as, ``.
. . an unmarried person who is
a legitimate child, a child
legally adopted before the age
of 18 years, a stepchild who
acquired that status before the
age of 18 years and who is a
member of the veteran's
household or was a member of
the veteran's household at the
time of the veteran's death, or
an illegitimate child; and (i)
who is under the age of 18
years; or (ii) who, before
reaching the age of 18 years,
became permanently incapable of
self-support; or (iii) who,
after reaching the age of 18
years and until completion of
education or training (but not
after reaching the age of 23
years) is pursuing a course of
instruction at an approved
educational institution. (2)
For the purposes of determining
entitlement of benefits based
on a child's school attendance,
the term ``child'' of the
veteran also includes the
following unmarried persons:
(i) A person who was adopted by
the veteran between the ages of
18 or 23 years. (ii) A person
who became a stepchild of a
veteran between the ages of 18
or 23 years and who is a member
of the veteran's household at
the time of the veteran's
death. . . .''
Survivors' and Dependents' Educational Adjudication (38 CFR part Section 3.807(d) sets forth 64.117
Assistance. 3). basic eligibility criteria for
the program of educational
assistance under 38 U.S.C.
Chapter 35. Defines the term
``child'' as the son or
daughter of a veteran who meets
the requirements of 38 CFR
3.57, except as to age or
marital status.
Survivors' and Dependent's Section 21.3021 describes
Educational Assistant beneficiaries of the program.
Under 38 U.S.C. Chapter 35 Paragraph (a) defines the term
(38 CFR part 21, subpart ``eligible person'' as, ``(1) A
C). child of a: (i) Veteran who
died of a service-connected
disability. . . .'' Paragraph
(b) defines the term ``child''
as a son or daughter of a
veteran as defined in 38 CFR
3.807(d).
[[Page 46]]
Section 21.3023 states that:
``(a) Child; age 18. A child
who is eligible for educational
assistance and who is also
eligible for pension,
compensation dependency and
indemnity compensation based on
school attendance must elect
whether he or she will receive
educational assistance or
pension, compensation or
dependency and indemnity
compensation. (1) An election
of education assistance either
before or after the age of 18
years is a bar to subsequent
payment or increased rates or
additional amounts of pension,
compensation or dependency and
indemnity compensation on
account of a child based on
school attendance on or after
the age of 18 years. . . . (2)
Payment of pension,
compensation or dependency and
indemnity compensation to or on
account of a child after his or
her 18th birthday does not bar
subsequent payments of
educational assistance. . . .
(b) Child; under 18 or
helpless. Educational
assistance allowance or special
restorative training allowance
may generally be paid
concurrently with pension,
compensation or dependency and
indemnity compensation for a
child under the age of 18 years
or for a helpless child based
on the service of one or more
parents. Where, however,
entitlement is based on the
death of more than one parent
in the same parental line,
concurrent payments in two or
more cases may not be
authorized if the death of one
such parent occurred on or
after June 9, 1960. In the
latter cases, an election of
educational assistance and
pension, compensation or
dependency and indemnity
compensation in one case does
not preclude a reelection of
benefits before attaining age
18 or while helpless based on
the service of another parent
in the same parental line. . .
.''
Section 21.3040 sets forth
criteria for the commencement
and termination of the program
of education or special
restorative training for an
eligible child under 38 U.S.C.
Chapter 35. Paragraph (a) of
this section provides that a
program of education or special
restorative training may not be
afforded prior to the eligible
persons' 18th birthday or the
completion of secondary
schooling, whichever is
earlier, unless it is
determined through counseling
that the best interests of the
eligible person will be served
by entering training at an
earlier date and the eligible
person has passed: (1)
Compulsory school attendance
age under State law; or (2) his
or her 14th birthday and due to
physical or mental handicap may
benefit by special restorative
or specialized vocational
training. Paragraph (c) of this
section provides that no person
is eligible for educational
assistance who reached his or
her 26th birthday on or before
the effective date of a finding
of permanent total service-
connected disability, or on or
before the date the veteran's
death occurred, or on or before
the 91st day of listing by the
Secretary concerned of the
member of the Armed Forces or
whose service eligibility is
claimed as being is one of the
missing categories identified
in 38 CFR 21.3021(a) (1)(iii)
and (3)(ii). Paragraph (d)
provides that no person is
eligible for educational
assistance beyond his or her
31st birthday, except in
certain exceptional cases.
[[Page 47]]
Section 21.3041 sets forth
periods of eligibility for an
eligible child. Paragraph (a)
of this section provides the
basic beginning date for the
educational assistance as the
person's 18th birthday or
successful completion of
secondary schooling, whichever
occurs first. Paragraph (b)
authorizes certain exceptions
to the basic beginning date,
if: (1) A person has passed
compulsory school attendance
under applicable State law, or
(2) has passed his or her 14th
birthday and has a physical or
mental handicap. Paragraph (c)
provides the basic ending date
as the person's 26th birthday.
Paragraphs (d) and (e) set
forth criteria for modifying or
extending the ending date.
Administration of Section 21.3300 provides that VA
Educational Benefits; 38 may prescribe special
U.S.C. Chapter 34, 35, and restorative training for the
36 (38 CFR part 21, purpose of enabling an eligible
subpart D). child to pursue a program of
education, special vocational
program, or other appropriate
goal, where needed to overcome
or lessen the effects of a
physical or mental disability.
Section 21.4102(a) requires VA
to provide counseling for the
purpose set forth in 38 CFR
21.4100 to an eligible child
when: (1) The eligible child
may require specialized
vocational or special
restorative training, or (2)
the eligible child has reached
compulsory school attendance
age under State law, but has
neither reached his or her 18th
birthday nor completed
secondary schooling, or (3) if
requested by the eligible child
or his or her parent or
guardian for the purpose of
preparing an educational plan.
Section 21.4139(b) provides that
VA will make payment of
educational assistance under 38
U.S.C. Chapter 35 to the
eligible person if: (1) He or
she has attained majority and
has no known legal disability
or (2) is in the eligible
person's best interests, and
there is no reason not to
designate the eligible person
as payee. VA may pay minors
under this provision.
Section 21.4141 provides that
payment of educational
assistance allowance under 38
U.S.C. Chapter 35 will be
subject to offsets of amounts
of pension, compensation, or
dependency and indemnity
compensation paid over the same
period on behalf of a child
based on school attendance.
VA Hospital, Domiciliary or Nursing Home Eligiblity for hospital, Section 17.47(e) provides that 64.009
Care. domiciliary or nursing within the limits of VA 64.010
home care of persons facilities, hospital or nursing 64.015
discharged or released home care may be provided to 64.016
from active military, any veteran with a nonservice-
naval, or air service (38 connected disability if such a
CFR 17.47). veteran is 65 years of age or
older.
[[Page 48]]
Civilian Health and Medical Program of Medical Care for Survivors Section 17.54 states that 64.009
the Department of Veterans Affairs and Dependents of Certain medical care may be provided
(CHAMPA). Veterans (38 CFR 17.54). for: ``(1) The spouse or child
of a veteran who has a total
disability, permanent in
nature, resulting from a
service-connected disability,
and (2) the surviving spouse or
child of a veteran who--(a)
died as a result of a service-
connected disability, or (b) at
the time of death had a total
disability, permanent in nature
resulting from a service-
connected disability and--(3)
the surviving spouse or child
of a person who died in the
active military, naval or air
service . . . Who are not
otherwise eligible for medical
care as beneficiaries of the
Armed Forces under the
provisions of Chapter 55 of
Title 10, United States Code
(CHAMPUS) . . . and (4) An
eligible child who is pursuing
a full-time course of
instruction approved under 38
U.S.C. Chapter 36, and who
incurs a disabling illness or
injury while pursuing such
course; . . . shall remain
eligible for medical care
until: (a) The end of the 6-
month period beginning on the
date the disability is removed,
or (b) the end of the 2-year
period beginning on the date of
the onset of the disability; or
(c) the 23d birthday of the
child, whichever occurs first.
. . .''
Veterans' Educational Assistance........ Administration of Section 21.4135(d) sets forth
Educational Benefits; 38 the following dates for the
U.S.C. Chapters 34, 35, discontinuance of the
and 36 (38 CFR part 21, educational assistance
subpart D). allowance provided for a
dependent child, under Chapter
34 of Title 38: ``. . . (1)
Last day of the in calendar
year in which marriage occurred
unless discontinuance is
required at an earlier date
under other provisions. (2) Age
18. Day preceding 18th
birthday. (3) School
attendance. Last day of month
in which 23rd birthday,
whichever is earlier. (4)
Helplessness ceased. Last day
of month school attendance
ceased or day preceding
following 60 days after notice
to payee that helplessness has
ceased.''
Section 21.4136 sets forth
monthly rates for the payment
of educational assistance
allowance under 38 U.S.C.
Chapter 34. Paragraph (f)
defines the term ``dependent''
as a spouse, child or dependent
parent who meets the
definitions of relationship
specified in 38 CFR 3.50, 3.51,
3.57 and 3.59.
----------------------------------------------------------------------------------------------------------------
PART 18a_DELEGATION OF RESPONSIBILITY IN CONNECTION WITH TITLE VI, CIVIL
RIGHTS ACT OF 1964--Table of Contents
Sec.
18a.1 Delegations of responsibility between the Secretary of Veterans
Affairs and the Secretary, Department of Health and Human
Services, and the Secretary, Department of Education.
18a.2 Delegation to the Under Secretary for Benefits.
18a.3 Delegation to the Chief Medical Director.
18a.4 Duties of the Director, Contract Compliance Service.
18a.5 Delegation to the General Counsel.
Authority: 5 U.S.C. 301, 38 U.S.C. 501 and 38 CFR 18.9(d) and
appendix A, part 18.
Sec. 18a.1 Delegations of responsibility between the Secretary of Veterans
Affairs and the Secretary, Department of Health and Human Services, and the
Secretary, Department of Education.
(a) Authority has been delegated to the Secretary of Veterans
Affairs by the Secretary, Department of Health and Human Services, and
the Secretary, Department of Education to perform responsibilities of
those Departments and of the responsible Departmental officials under
Title VI of
[[Page 49]]
the Civil Rights Act of 1964 and the Departments' regulations issued
thereunder (45 CFR part 80 and 34 CFR part 100) with respect to:
Proprietary (i.e., other than public or nonprofit) educational
institutions, except if operated by a hospital; and post secondary,
nonprofit, educational institutions other than colleges and
universities, except if operated by a college or university, a hospital,
or a unit of State or local government (i.e., those operating such
institutions as an elementary or secondary school, an area vocational
school, a school for the handicapped, etc.)
(1) The compliance responsibilities so delegated include:
(i) Soliciting, receiving, and determining the adequacy of
assurances of compliance under 45 CFR 80.4 and 34 CFR 100.4;
(ii) All actions under 45 CFR 80.6 including mailing, receiving, and
evaluating compliance reports under Sec. 80.6(b) and 34 CFR 100.6(b);
and
(iii) All other actions related to securing voluntary compliance, or
related to investigations, compliance reviews, complaints,
determinations of apparent failure to comply, and resolutions of matters
by informal means.
(2) The Department of Health and Human Services and the Department
of Education specifically reserve to themselves the responsibilities for
the effectuation of compliance under 45 CFR 80.8, 80.9, 80.10 and 34 CFR
100.8, 100.9 and 100.10.
(b) Authority has been delegated to the Secretary, Department of
Health and Human Services and the Secretary, Department of Education, to
perform responsibilities of the Department of Veterans Affairs and of
the responsible Department of Veterans Affairs official under Title VI
of the Civil Rights Act of 1964 and the Department of Veterans Affairs
regulations issued thereunder (part 18 of this chapter) with respect to
institutions of higher learning, including post-high school institutions
which offer nondegree courses for which credit is given and which would
be accepted on transfer by a degree-granting institution toward a
baccalaureate or higher degree; hospitals and other health facilities
and elementary and secondary schools and school systems including, but
not limited to, their activities in connection with providing or seeking
approval to provide vocational rehabilitation to eligible persons under
Chapter 31 of Title 38 U.S.C., or education or training to eligible
persons under Chapters 34, 35, or 36 of Title 38 U.S.C.
(1) The compliance responsibilities so delegated include:
(i) Soliciting, receiving, and determining the adequacy of
assurances of compliance under Sec. 18.4 of this chapter;
(ii) Mailing, receiving, and evaluating compliance reports under
Sec. 18.6(b) of this chapter; and
(iii) All other actions related to securing voluntary compliance or
related investigations, compliance reviews, complaints, determinations
of apparent failure to comply and resolutions of matters by informal
means.
(2) The Department of Veterans Affairs specifically reserves to
itself responsibilities for effectuation of compliance under Sec. Sec.
18.8, 18.9, and 18.10 of this chapter. Not included in the delegation to
the Secretary, Department of Health and Human Services and the
Secretary, Department of Education and specifically reserved to the
Department of Veterans Affairs is the exercise of compliance
responsibilities with respect to:
(i) Postsecondary schools which do not offer a program or courses
leading, or creditable, towards the granting of at least a bachelor's
degree, or its equivalent;
(ii) Privately-owned and operated proprietary technical, vocational,
and other private schools at the elementary or secondary level; and
(iii) Those institutions of higher learning and elementary and
secondary schools and school systems which, as of January 3, 1969, have
already been subjected to formal noncompliance proceedings by the
Department of Health and Human Services or the Department of Education
and have had their right to receive Federal financial assistance from
that agency terminated for noncompliance with Title VI of the Civil
Rights Act of 1964.
The Department of Veterans Affairs also retains the right to exercise
delegated compliance responsibilities itself in special cases with the
agreement of
[[Page 50]]
the appropriate official in the Department of Health and Human Services
or the Department of Education.
(c) Any institution of higher learning or a hospital or other health
facility which is listed by the Department of Health and Human Services
or the Department of Education as having filed an assurance of
compliance will be accepted as having met the requirements of the law
for the purpose of payment under 38 U.S.C. Chapters 31, 34, 35, or 36
and 38 U.S.C. sections 1741, 8131-8137 and 8155.
(d) If the Department of Health and Human Services or the Department
of Education finds that a school, hospital or other health facility
which has signed an assurance of compliance is apparently in
noncompliance, action will be initiated by that Department to obtain
compliance by voluntary means. If voluntary compliance is not achieved,
the Department of Veterans Affairs will join in subsequent proceedings.
(e) An institution which is on the Department of Health and Human
Services or the Department of Education list of noncomplying
institutions will be considered to be in a status of compliance for
Department of Veterans Affairs purposes if an assurance of compliance is
filed with the Department of Veterans Affairs and actual compliance is
confirmed. Certificates of eligibility may be issued and enrollments
approved and other appropriate payments made until such time as the
Department of Veterans Affairs has made an independent determination
that the institution is not in compliance.
[35 FR 10759, July 2, 1970, as amended at 51 FR 10385, Mar. 26, 1986]
Sec. 18a.2 Delegation to the Under Secretary for Benefits.
The Under Secretary for Benefits is delegated responsibility for
obtaining evidence of voluntary compliance for vocational
rehabilitation, education, and special restorative training to implement
Title VI, Civil Rights Act of 1964. Authority is delegated to the Under
Secretary for Benefits and designee to take any necessary action as to
programs of vocational rehabilitation, education, or special restorative
training under 38 U.S.C. Chapters 31, 34, 35, and 36 for the purpose of
securing evidence of voluntary compliance directly or through the
agencies to whom the Secretary of Veterans Affairs has delegated
responsibility for various schools or training establishments to
implement part 18 of this chapter. The Under Secretary for Benefits also
is delegated responsibility for obtaining evidence of voluntary
compliance from recognized national organizations whose representatives
are afforded space and office facilities in field facilities under
jurisdiction of the Under Secretary for Benefits.
[35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986; 54
FR 34984, Aug. 23, 1989]
Sec. 18a.3 Delegation to the Chief Medical Director.
The Chief Medical Director is delegated responsibility for obtaining
evidence of voluntary compliance implementing the provisions of Title
VI, Civil Rights Act of 1964, in connection with payments to State
homes, with State home facilities for furnishing nursing home care, and
from recognized national organizations whose representatives are
afforded space and office facilities in field facilities under
jurisdiction of the Chief Medical Director.
[35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18a.4 Duties of the Director, Contract Compliance Service.
Upon referral by the Chief Medical Director or the Under Secretary
for Benefits, the Director, Contract Compliance Service will:
(a) Investigate and process all complaints arising under Title VI of
the Civil Rights Act of 1964;
(b) Conduct periodic audits, reviews and evaluations;
(c) Attempt to secure voluntary compliance by conciliatory or other
informal means whenever investigation of a complaint, compliance review,
failure to furnish assurance of compliance, or other source indicates
noncompliance with Title VI; and
report to the Chief Medical Director or the Under Secretary for
Benefits, whichever is appropriate, the results of
[[Page 51]]
investigations, audits, reviews and evaluations or the results of
attempts to secure voluntary compliance.
[35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18a.5 Delegation to the General Counsel.
The General Counsel is delegated the responsibility, upon receipt of
information from the Under Secretary for Benefits, the Chief Medical
Director, or the designee of either of them, that compliance cannot be
secured by voluntary means, of forwarding to the recipient or other
person the notice required by Sec. 18.9(a) of this chapter, and also is
delegated the responsibility of representing the agency in all
proceedings resulting from such notice.
[35 FR 10759, July 2, 1970]
PART 18b_PRACTICE AND PROCEDURE UNDER TITLE VI OF THE CIVIL RIGHTS ACT
OF 1964 AND PART 18 OF THIS CHAPTER--Table of Contents
General Rules
Sec.
18b.1 Scope of rules.
18b.2 Reviewing authority.
18b.9 Definitions.
18b.10 Records to be public.
18b.11 Use of number.
18b.12 Suspension of rules.
Appearance and Practice
18b.13 Appearance.
18b.14 Authority for representation.
18b.15 Exclusion from hearing for misconduct.
Parties
18b.16 Parties.
18b.17 Amici curiae.
18b.18 Complainants not parties.
Documents
18b.20 Form of documents to be filed.
18b.21 Signature of documents.
18b.22 Filing and service.
18b.23 Service; how made.
18b.24 Date of service.
18b.25 Certificate of service.
Time
18b.26 Computation.
18b.27 Extension of time or postponement.
18b.28 Reduction of time to file documents.
Proceedings Before Hearing
18b.30 Notice of hearing or opportunity for hearing.
18b.31 Answer to notice.
18b.32 Amendment of notice or answer.
18b.33 Request for hearing.
18b.34 Consolidation.
18b.35 Motions.
18b.36 Responses to motions and petitions.
18b.37 Disposition of motions and petitions.
Responsibilities and Duties of Presiding Officer
18b.40 Who presides.
18b.41 Designation of an administrative law judge.
18b.42 Authority of presiding officer.
Hearing Procedures
18b.50 Statements of position and trial briefs.
18b.51 Evidentiary purpose.
18b.52 Testimony.
18b.53 Exhibits.
18b.54 Affidavits.
18b.55 Depositions.
18b.56 Admissions as to facts and documents.
18b.57 Evidence.
18b.58 Cross-examination.
18b.59 Unsponsored written material.
18b.60 Objections.
18b.61 Exceptions to rulings of presiding officer unnecessary.
18b.62 Official notice.
18b.63 Public document items.
18b.64 Offer of proof.
18b.65 Appeals from ruling of presiding officer.
The Record
18b.66 Official transcript.
18b.67 Record for decision.
Posthearing Procedures; Decisions
18b.70 Posthearing briefs; proposed findings and conclusions.
18b.71 Decisions following hearing.
18b.72 Exceptions to initial or recommended decisions.
18b.73 Final decisions.
18b.74 Oral argument to the reviewing authority.
18b.75 Review by the Secretary.
18b.76 Service on amici curiae.
Posthearing Department Actions
18b.77 Final Department action.
Judicial Standards of Practice
18b.90 Conduct.
18b.91 Improper conduct.
18b.92 Ex parte communications.
18b.93 Expeditious treatment.
18b.94 Matters not prohibited.
[[Page 52]]
18b.95 Filing of ex parte communications.
Authority: 5 U.S.C. 301, 38 U.S.C. 501 and 38 CFR 18.9(d) and
appendix A, part 18.
Source: 35 FR 10760, July 2, 1970, unless otherwise noted.
General Rules
Sec. 18b.1 Scope of rules.
The rules of procedure in this part supplement Sec. Sec. 18.9 and
18.10 of this chapter and govern the practice for hearings, decisions,
and administrative review conducted by the Department of Veterans
Affairs pursuant to Title VI of the Civil Rights Act of 1964 (section
602, 78 Stat. 252) and part 18 of this chapter.
Sec. 18b.2 Reviewing authority.
The term reviewing authority means the Secretary of Veterans
Affairs, or any person or persons acting pursuant to authority delegated
by the Secretary to carry out responsibility under Sec. 18.10 of this
chapter. The term includes the Secretary with respect to action under
Sec. 18b.75.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.9 Definitions.
The definitions contained in Sec. 18.13 of this chapter apply to
this part, unless the context otherwise requires.
Sec. 18b.10 Records to be public.
All pleadings, correspondence, exhibits, transcripts of testimony,
exceptions, briefs, decisions, and other documents filed in the docket
in any proceeding may be inspected and copied in the office of the Civil
Rights hearing clerk. Inquiries may be made at the Department of
Veterans Affairs Central Office, 810 Vermont Avenue NW., Washington, DC
20420.
Sec. 18b.11 Use of number.
As used in this part, words importing the singular number may extend
and be applied to several persons or things, and vice versa.
[51 FR 10386, Mar. 26, 1986]
Sec. 18b.12 Suspension of rules.
Upon notice to all parties, the reviewing authority or the presiding
officer, with respect to matters pending before them, may modify or
waive any rule upon determination that no party will be unduly
prejudiced and the ends of justice will thereby be served.
Appearance and Practice
Sec. 18b.13 Appearance.
A party may appear in person or by counsel and participate fully in
any proceeding. A State agency or a corporation may appear by any of its
officers or by any employee it authorizes to appear on its behalf.
Counsel must be members in good standing of the bar of a State,
territory, or possession of the United States or of the District of
Columbia or the Commonwealth of Puerto Rico.
Sec. 18b.14 Authority for representation.
Any individual acting in any proceeding may be required to show
authority to act in such capacity.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.15 Exclusion from hearing for misconduct.
Disrespectful, disorderly, or contumacious language or contemptuous
conduct, refusal to comply with directions, or continued use of dilatory
tactics by any person at any hearing before a presiding officer shall
constitute grounds for immediate exclusion of such person from the
hearing by the presiding officer.
Parties
Sec. 18b.16 Parties.
The term party shall include an applicant or recipient or other
person to whom a notice of hearing or opportunity for hearing has been
mailed naming that person as respondent. The Department shall also be
deemed a party to all proceedings and shall be represented by the
General Counsel.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986; 54
FR 34984, Aug. 23, 1989]
[[Page 53]]
Sec. 18b.17 Amici curiae.
(a) Any interested person or organization may file a petition to
participate in a proceeding as an amicus curiae. Such petition shall be
filed prior to the prehearing conference, or if none is held, before the
commencement of the hearing, unless the petitioner shows good cause for
filing the petition later. The presiding officer may grant the petition
if the officer finds that the petitioner has a legitimate interest in
the proceedings, that such participation will not unduly delay the
outcome, and may contribute materially to the proper disposition
thereof. An amicus curiae is not a party and may not introduce evidence
at a hearing.
(b) An amicus curiae may submit a statement of position to the
presiding officer prior to the beginning of a hearing, and shall serve a
copy on each party. The amicus curiae may submit a brief on each
occasion a decision is to be made or a prior decision is subject to
review. The brief shall be filed and served on each party within the
time limits applicable to the party whose position the amicus curiae
deems to support; or if the amicus curiae does not deem to support the
position of any party, within the longest time limit applicable to any
party at that particular stage of the proceedings.
(c) When all parties have completed their initial examination of a
witness, any amicus curiae may request the presiding officer to propound
specific questions to the witness. The presiding officer, in the
officer's discretion, may grant any such request if the officer believes
the proposed additional testimony may assist materially in elucidating
factual matters at issue between the parties and will not expand the
issues.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.18 Complainants not parties.
A person submitting a complaint pursuant to Sec. 18.7(b) of this
chapter is not a party to the proceedings governed by this part, but may
petition, after proceedings are initiated, to become an amicus curiae.
Documents
Sec. 18b.20 Form of documents to be filed.
Documents to be filed shall be dated, the original signed in ink,
shall show the docket description and title of the proceeding, and shall
show the title, if any, and address of the signatory. Copies need not be
signed but the name of the person signing the original shall be
reproduced. Documents shall be legible and shall not be more than 8\1/2\
inches wide and 12 inches long.
Sec. 18b.21 Signature of documents.
The signature of a party, authorized officer, employee, or attorney
constitutes a certificate that one of them has read the document, that
to the best of that person's knowledge, information, and belief there is
good ground to support it, and that it is not interposed for delay. If a
document is not signed or is signed with intent to defeat the purpose of
this section, it may be stricken as sham and false and the proceeding
may proceed as though the document had not been filed. Similar action
may be taken if scandalous or indecent matter is inserted.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.22 Filing and service.
All notices by a Department of Veterans Affairs official, and all
written motions, requests, petitions, memoranda, pleadings, exceptions,
briefs, decisions, and correspondence to a Department of Veterans
Affairs official from a party, or vice versa, relating to a proceeding
after its commencement shall be filed and served on all parties. Parties
shall supply the original and two copies of documents submitted for
filing. Filings shall be made with the Civil Rights hearing clerk at the
address stated in the notice of hearing or notice of opportunity for
hearing, during regular business hours. Regular business hours are every
Monday through Friday (legal holidays in the District of Columbia
excepted) from 8 a.m. to 4:30 p.m., eastern standard or daylight saving
time, whichever is effective in the District of Columbia at the time.
Originals only of exhibits and transcripts of testimony need be filed.
[[Page 54]]
For requirements of service on amici curiae, see Sec. 18b.76.
Sec. 18b.23 Service; how made.
Service shall be made by personal delivery of one copy to each
person to be served or by mailing by first-class mail, properly
addressed with postage prepaid. When a party or amicus has appeared by
attorney or other representative, service upon such attorney or
representative, will be deemed service upon the party or amicus.
Documents served by mail preferably should be mailed in sufficient time
to reach the addressee by the date on which the original is due to be
filed, and should be airmailed if the addressee is more than 300 miles
distant.
Sec. 18b.24 Date of service.
The date of service shall be the day when the matter is deposited in
the U.S. mail or is delivered in person, except that the date of service
of the initial notice of hearing or opportunity for hearing shall be the
date of its delivery, or of its attempted delivery if refused.
Sec. 18b.25 Certificate of service.
The original of every document filed and required to be served upon
parties to a proceeding shall be endorsed with a certificate of service
signed by the party making service or by the party's attorney or
representative, stating that such service has been made, the date of
service, and the manner of service, whether by mail or personal
delivery.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Time
Sec. 18b.26 Computation.
In computing any period of time under the rules in this part or in
an order issued hereunder, the time begins with the day following the
act, event, or default, and includes the last day of the period, unless
it is a Saturday, Sunday, or legal holiday observed in the District of
Columbia, in which event it includes the next following business day.
When the period of time prescribed or allowed is less than 7 days,
intermediate Saturdays, Sundays, and legal holidays shall be excluded
from the computation.
Sec. 18b.27 Extension of time or postponement.
Requests for extension of time should be served on all parties and
should set forth the reasons for the application. Applications may be
granted upon a showing of good cause by the applicant. From the
designation of a presiding officer until the issuance of a decision such
requests should be addressed to the presiding officer. Answers to such
requests are permitted, if made promptly.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.28 Reduction of time to file documents.
For good cause, the reviewing authority or the presiding officer,
with respect to matters pending before them, may reduce any time limit
prescribed by the rules in this part, except as provided by law or in
part 18 of this chapter.
Proceedings Before Hearing
Sec. 18b.30 Notice of hearing or opportunity for hearing.
Proceedings are commenced by mailing a notice of hearing or
opportunity for hearing to an affected applicant or recipient, pursuant
to Sec. Sec. 18.9 and 18a.5 of this chapter.
Sec. 18b.31 Answer to notice.
The respondent, applicant or recipient may file an answer to the
notice within 20 days after service thereof. Answers shall admit or deny
specifically and in detail each allegation of the notice, unless the
respondent party is without knowledge, in which case the answer should
so state, and the statement will be deemed a denial. Allegations of fact
in the notice not denied or controverted by answer shall be deemed
admitted. Matters alleged as affirmative defenses shall be separately
stated and numbered. Failure of the respondent to file an answer within
the 20-day period following service of the notice may be deemed an
admission of
[[Page 55]]
all matters of fact recited in the notice.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.32 Amendment of notice or answer.
The General Counsel may amend the notice of hearing or opportunity
for hearing once as a matter of course before an answer thereto is
served, and each respondent may amend the answer once as a matter of
course not later than 10 days before the date fixed for hearing but in
no event later than 20 days from the date of service of the original
answer. Otherwise a notice or answer may be amended only by leave of the
presiding officer. A respondent shall file the answer to an amended
notice within the time remaining for filing the answer to the original
notice or within 10 days after service of the amended notice, whichever
period may be the longer, unless the presiding officer otherwise orders.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.33 Request for hearing.
Within 20 days after service of a notice of opportunity for hearing
which does not fix a date for hearing the respondent, either in the
answer or in a separate document, may request a hearing. Failure of the
respondent to request a hearing shall be deemed a waiver of the right to
a hearing and to constitute consent to the making of a decision on the
basis of such information as is available.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.34 Consolidation.
The reviewing authority may provide for proceedings in the
Department of Veterans Affairs to be joined or consolidated for hearing
with proceedings in other Federal departments or agencies, by agreement
with such other departments or agencies. All parties to any proceeding
consolidated subsequent to service of the notice of hearing or
opportunity for hearing shall be served with notice of such
consolidation.
Sec. 18b.35 Motions.
Motions and petitions shall state the relief sought, the authority
relied upon, and the facts alleged. If made before or after the hearing,
these matters shall be in writing. If made at the hearing, they may be
stated orally; but the presiding officer may require that they be
reduced to writing and filed and served on all parties in the same
manner as a formal motion. Motions, answers, and replies shall be
addressed to the presiding officer, if the case is pending before the
officer. A repetitious motion will not be entertained.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.36 Responses to motions and petitions.
Within 8 days after a written motion or petition is served, or such
other period as the reviewing authority or the presiding officer may
fix, any party may file a response thereto. An immediate oral response
may be made to an oral motion.
Sec. 18b.37 Disposition of motions and petitions.
The reviewing authority or the presiding officer may not sustain or
grant a written motion or petition prior to expiration of the time for
filing responses thereto, but may overrule or deny such motion or
petition without awaiting response: Provided, however, That prehearing
conferences, hearings and decisions need not be delayed pending
disposition of motions or petitions. Oral motions and petitions may be
ruled on immediately. Motions and petitions submitted to the reviewing
authority or the presiding officer, respectively, and not disposed of in
separate rulings or in their respective decisions will be deemed denied.
Oral arguments shall not be held on written motions or petitions unless
the presiding officer in the officer's discretion expressly so orders.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
[[Page 56]]
Responsibilities and Duties of Presiding Officer
Sec. 18b.40 Who presides.
An administrative law judge assigned under 5 U.S.C. 3105 or 3344
(formerly section 11 of the Administrative Procedure Act) shall preside
over the taking of evidence in any hearing to which these rules or
procedure apply.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.41 Designation of an administrative law judge.
The designation of the administrative law judge as presiding officer
shall be in writing, and shall specify whether the administrative law
judge is to make an initial decision or to certify the entire record
including recommended findings and proposed decision to the reviewing
authority, and may also fix the time and place of hearing. A copy of
such order shall be served on all parties. After service of an order
designating an administrative law judge to preside, and until such
administrative law judge makes a decision, motions and petitions shall
be submitted to the administrative law judge. In the case of the death,
illness, disqualification or unavailability of the designated
administrative law judge, another administrative law judge may be
designated to take that person's place.
[51 FR 10386, Mar. 26, 1986]
Sec. 18b.42 Authority of presiding officer.
The presiding officer shall have the duty to conduct a fair hearing,
to take all necessary action to avoid delay, and to maintain order. The
presiding officer shall have all powers necessary to these ends,
including (but not limited to) the power to:
(a) Arrange and issue notice of the date, time, and place of
hearings, or, upon due notice to the parties, to change the date, time,
and place of hearings previously set.
(b) Hold conferences to settle, simplify, or fix the issues in a
proceeding, or to consider other matters that may aid in the expeditious
disposition of the proceeding.
(c) Require parties and amici curiae to state their position with
respect to the various issues in the proceeding.
(d) Administer oaths and affirmations.
(e) Rule on motions, and other procedural items on matters pending
before the presiding officer.
(f) Regulate the course of the hearing and conduct of counsel
therein.
(g) Examine witnesses and direct witnesses to testify.
(h) Receive, rule on, exclude or limit evidence.
(i) Fix the time for filing motions, petitions, briefs, or other
items in matters pending before the presiding officer.
(j) Issue initial or recommended decisions.
(k) Take any action authorized by the rules in this part, or in
conformance with the provisions of 5 U.S.C. 551-559 (the Administrative
Procedure Act).
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Hearing Procedures
Sec. 18b.50 Statements of position and trial briefs.
The presiding officer may require parties and amici curiae to file
written statements of position prior to the beginning of a hearing. The
presiding officer may also require the parties to submit trial briefs.
Sec. 18b.51 Evidentiary purpose.
(a) The hearing is directed to receiving factual evidence and expert
opinion testimony related to the issues in the proceeding. Argument will
not be received in evidence; rather it should be presented in
statements, memoranda, or briefs, as determined by the presiding
officer. Brief opening statements, which shall be limited to statement
of the party's position and what the party intends to prove, may be made
at hearings.
(b) Hearings for the reception of evidence will be held only in
cases where issues of fact must be resolved in order to determine
whether the respondent has failed to comply with one or more applicable
requirements of part 18 of
[[Page 57]]
this chapter. In any case where it appears from the respondent's answer
to the notice of hearing or opportunity for hearing, from failure timely
to answer, or from admissions or stipulations in the record, that there
are no matters of material fact in dispute, the reviewing authority or
presiding officer may enter an order so finding, vacating the hearing
date if one has been set, and fixing the time for filing briefs under
Sec. 18b.70. Thereafter the proceedings shall go to conclusion in
accordance with Sec. Sec. 18b.70 through 18b.76. The presiding officer
may allow an appeal from such order in accordance with Sec. 18b.65.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.52 Testimony.
Testimony shall be given orally under oath or affirmation by
witnesses at the hearing; but the presiding officer, in the officer's
discretion, may require or permit that the direct testimony of any
witness be prepared in writing and served on all parties in advance of
the hearing. Such testimony may be adopted by the witness at the
hearing, and filed as part of the record thereof. Unless authorized by
the presiding officer, witnesses will not be permitted to read prepared
testimony into the record. Except as provided in Sec. Sec. 18b.54 and
18b.55, witnesses shall be available at the hearing for cross-
examination.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.53 Exhibits.
Proposed exhibits shall be exchanged at the prehearing conference,
or otherwise prior to the hearing if the presiding officer so requires.
Proposed exhibits not so exchanged may be denied admission as evidence.
The authenticity of all proposed exhibits exchanged prior to hearing
will be deemed admitted unless written objection thereto is filed prior
to the hearing or unless good cause is shown at the hearing for failure
to file such written objection.
Sec. 18b.54 Affidavits.
An affidavit is not inadmissible as such. Unless the presiding
officer fixes other time periods affidavits shall be filed and served on
the parties not later than 15 days prior to the hearing; and not less
than 7 days prior to hearing a party may file and serve written
objection to any affidavit on the ground that it is believed necessary
to test the truth of assertions therein at hearing. In such event the
assertions objected to will not be received in evidence unless the
affiant is made available for cross-examination, or the presiding
officer determines that cross-examination is not necessary for the full
and true disclosure of facts referred to in such assertions.
Notwithstanding any objection, however, affidavits may be considered in
the case of any respondent who waives a hearing.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.55 Depositions.
Upon such terms as may be just, for the convenience of the parties
or of the Department of Veterans Affairs, the presiding officer may
authorize or direct the testimony of any witness to be taken by
deposition.
Sec. 18b.56 Admissions as to facts and documents.
Not later than 15 days prior to the scheduled date of the hearing
except for good cause shown or prior to such earlier date as the
presiding officer may order, any party may serve upon an opposing party
a written request for the admission of the genuineness and authenticity
of any relevant documents described in and exhibited with the request,
or for the admission of the truth of any relevant matters of fact stated
in the request. Each of the matters of which an admission is requested
shall be deemed admitted, unless within a period designated in the
request (not less than 10 days after service thereof, or within such
further time as the presiding officer or the reviewing authority if no
presiding officer has yet been designated may allow upon motion and
notice) the party to whom the
[[Page 58]]
request is directed serves upon the requesting party a sworn statement
either denying specifically the matters of which an admission is
requested or setting forth in detail the reasons why the party cannot
truthfully either admit or deny such matters. Copies of requests for
admission and answers thereto shall be served on all parties. Any
admission made by a party to such request is only for the purposes of
the pending proceeding, or any proceeding or action instituted for the
enforcement of any order entered therein, and shall not constitute an
admission by the party for any other purpose or be used against the
party in any other proceeding or action.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.57 Evidence.
Irrelevant, immaterial, unreliable, and unduly repetitious evidence
will be excluded.
Sec. 18b.58 Cross-examination.
A witness may be cross-examined on any matter material to the
proceeding without regard to the scope of his direct examination.
Sec. 18b.59 Unsponsored written material.
Letters expressing views or urging action and other unsponsored
written material regarding matters in issue in a hearing will be placed
in the correspondence section of the docket of the proceeding. These
data are not deemed part of the evidence or record in the hearing.
Sec. 18b.60 Objections.
Objections to evidence shall be timely and briefly state the ground
relied upon.
Sec. 18b.61 Exceptions to rulings of presiding officer unnecessary.
Exceptions to rulings of the presiding officer are unnecessary. It
is sufficient that a party, at the time the ruling of the presiding
officer is sought, makes known the action which the party desires the
presiding officer to take, or the party's objection to an action taken,
and the party's grounds therefor.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.62 Official notice.
Where official notice is taken or is to be taken of a material fact
not appearing in the evidence of record, any party, on timely request,
shall be afforded an opportunity to show the contrary.
Sec. 18b.63 Public document items.
Whenever there is offered (in whole or in part) a public document,
such as an official report, decision, opinion, or published scientific
or economic statistical data issued by any of the executive departments
(or their subdivisions), legislative agencies or committees, or
administrative agencies of the Federal Government (including Government-
owned corporations), or a similar document issued by a State or its
agencies, and such document (or part thereof) has been shown by the
offeror to be reasonably available to the public, such document need not
be produced or marked for identification, but may be offered for
official notice, as a public document item by specifying the document or
relevant part thereof.
Sec. 18b.64 Offer of proof.
An offer of proof made in connection with an objection taken to any
ruling of the presiding officer rejecting or excluding proffered oral
testimony shall consist of a statement of the substance of the evidence
which counsel contends would be adduced by such testimony; and, if the
excluded evidence consists of evidence in documentary or written form or
of reference to documents or records, a copy of such evidence shall be
marked for identification and shall accompany the record as the offer of
proof.
Sec. 18b.65 Appeals from ruling of presiding officer.
Rulings of the presiding officer may not be appealed to the
reviewing authority prior to consideration of the entire proceeding
except with the consent of the presiding officer and where the reviewing
authority certifies on
[[Page 59]]
the record or in writing that the allowance of an interlocutory appeal
is clearly necessary to prevent exceptional delay, expense, or prejudice
to any party, or substantial detriment to the public interest. If an
appeal is allowed, any party may file a brief with the reviewing
authority within such period as the presiding officer directs. No oral
argument will be heard unless the reviewing authority directs otherwise.
At any time prior to submission of the proceeding to the reviewing
authority for decision, the reviewing authority may direct the presiding
officer to certify any question or the entire record to the reviewing
authority for decision. Where the entire record is so certified, the
presiding officer shall recommend a decision.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
The Record
Sec. 18b.66 Official transcript.
The Department of Veterans Affairs will designate the official
reporter for all hearings. The official transcripts of testimony taken,
together with any exhibits, briefs, or memoranda of law filed therewith
shall be filed with the Department of Veterans Affairs. Transcripts of
testimony in hearings may be obtained from the official reporter by the
parties and the public at rates not to exceed the maximum rates fixed by
the contract between the Department of Veterans Affairs and the
reporter. Upon notice to all parties, the presiding officer may
authorize corrections to the transcript which involve matters of
substance.
Sec. 18b.67 Record for decision.
The transcript of testimony, exhibits, and all papers and requests
filed in the proceedings, except the correspondence section of the
docket, including rulings and any recommended or initial decision shall
constitute the exclusive record for decision.
Posthearing Procedures; Decisions
Sec. 18b.70 Posthearing briefs; proposed findings and conclusions.
(a) The presiding officer shall fix the time for filing posthearing
briefs, which may contain proposed findings of fact and conclusions of
law, and, if permitted, reply briefs.
(b) Briefs should include a summary of the evidence relied upon
together with references to exhibit numbers and pages of the transcript,
with citations of authorities relied upon.
Sec. 18b.71 Decisions following hearing.
When the time for submission of posthearing briefs has expired, the
presiding officer shall certify the entire record, including recommended
findings and proposed decision, to the reviewing authority; or if so
authorized shall make an initial decision. A copy of the recommended
findings and proposed decision, or of the initial decision, shall be
served upon all parties, and amici, if any.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]
Sec. 18b.72 Exceptions to initial or recommended decisions.
Within 20 days after the mailing of an initial or recommended
decision, any party may file exceptions to the decision, stating reasons
therefor, with the reviewing authority. Any other party may file a
response thereto within 30 days after the mailing of the decision. Upon
the filing of such exceptions, the reviewing authority shall review the
decision and issue its own decision thereon.
Sec. 18b.73 Final decisions.
(a) Where the hearing is conducted by a hearing examiner who makes
an initial decision, if no exceptions thereto are filed within the 20-
day period specified in Sec. 18b.72, such decision shall become the
final decision of the Department of Veterans Affairs, and shall
constitute ``final agency action'' within the meaning of 5 U.S.C. 704
(formerly section 10(c) of the Administrative Procedure Act), subject to
the provisions of Sec. 18b.75.
(b) Where the hearing is conducted by an administrative law judge
who makes a recommended decision or upon the filing of exceptions to an
administrative law judge's initial decision, the reviewing authority
shall review the recommended or initial decision and shall issue a
decision thereon, which
[[Page 60]]
shall become the final decision of VA, and shall constitute ``final
agency action'' within the meaning of 5 U.S.C. 704 (formerly section
10(c) of the Administrative Procedures Act), subject to the provisions
of Sec. 18b.75.
(c) All final decisions shall be promptly served on all parties, and
amici, if any.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986; 54
FR 34984, Aug. 23, 1989]
Sec. 18b.74 Oral argument to the reviewing authority.
(a) If any party desires to argue a case orally on exceptions or
replies to exceptions to an initial or recommended decision, the party
shall make such request in writing. The reviewing authority may grant or
deny such requests in his or her discretion. If granted, the reviewing
authority will serve notice of oral argument on all parties. The notice
will set forth the order of presentation, the amount of time allotted,
and the time and place for argument. The names of persons who will argue
should be filed with the agency hearing clerk not later than 7 days
before the date set for oral argument.
(b) The purpose of oral argument is to emphasize and clarify the
written argument in the briefs. Reading at length from the brief or
other texts is not favored. Participants should confine their arguments
to points of controlling importance and to points upon which exceptions
have been filed. Consolidations of appearances at oral argument by
parties taking the same side will permit the parties' interests to be
presented more effectively in the time allotted.
(c) Pamphlets, charts, and other written material may be presented
at oral argument only if such material is limited to facts already in
the record and is served on all parties and filed with the Department
hearing clerk at least 7 days before the argument.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986; 54
FR 34984, Aug. 23, 1989]
Sec. 18b.75 Review by the Secretary.
Within 20 days after an initial decision becomes a final decision
pursuant to Sec. 18b.73(a), or within 20 days of the mailing of a final
decision referred to in Sec. 18b.73(b), as the case may be, a party may
request the Secretary to review the final decision. The Secretary may
grant or deny such request, in whole or in part, or serve notice of
intent to review the decision in whole or in part upon motion. If the
Secretary grants the requested review, or serves notice of intent to
review upon motion, each party to the decision shall have 20 days
following notice of the Secretary's proposed action within which to file
exceptions to the decision and supporting briefs and memoranda, or
briefs and memoranda in support of the decision. Failure of a party to
request review under this section shall not be deemed a failure to
exhaust administrative remedies for the purpose of obtaining judicial
review.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]
Sec. 18b.76 Service on amici curiae.
All briefs, exceptions, memoranda, requests, and decisions referred
to in Sec. Sec. 18b.70 through 18b.76 shall be served upon amici curiae
at the same times and in the same manner required for service on
parties. Any written statements of position and trial briefs required of
parties under Sec. 18b.50 shall be served on amici.
Posthearing Department Actions
Sec. 18b.77 Final Department action.
(a) The final decision of the administrative law judge or reviewing
authority that a school or training establishment is not in compliance
will be referred by the reviewing authority to the Secretary for
approval as required by Sec. 18.10(e) of this chapter. The finding will
be accompanied by letters from the Secretary to the House Veterans'
Affairs Committee and the Senate Veterans Affairs Committee containing a
full report on the circumstances as required by Sec. 18.8(c) of this
chapter, the reasons for the proposed action and a statement that the
proposed action will become the final Department action 30 days after
the date of the letter.
[[Page 61]]
(b) A copy of the letters to the congressional committees will be
sent to all parties to the proceedings.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986; 54
FR 34984, Aug. 23, 1989]
Judicial Standards of Practice
Sec. 18b.90 Conduct.
Parties and their representatives are expected to conduct themselves
with honor and dignity and observe judicial standards of practice and
ethics in all proceedings. They should not indulge in offensive
personalities, unseemly wrangling, or intemperate accusations or
characterizations. A representative of any party whether or not a lawyer
shall observe the traditional responsibilities of lawyers as officers of
the court and use best efforts to restrain the principal represented
from improprieties in connection with a proceeding.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]
Sec. 18b.91 Improper conduct.
With respect to any proceeding it is improper for any interested
person to attempt to sway the judgment of the reviewing authority by
undertaking to bring pressure or influence to bear upon the reviewing
authority or any officer having a responsibility for a decision in the
proceeding, or decisional staff. It is improper that such interested
persons or any members of the Department of Veterans Affairs's staff or
the presiding officer give statements to communications media, by paid
advertisement or otherwise, designed to influence the judgment of any
officer having a responsibility for a decision in the proceeding, or
decisional staff. It is improper for any person to solicit
communications to any such officer, or decisional staff, other than
proper communications by parties or amici curiae.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]
Sec. 18b.92 Ex parte communications.
Only persons employed by or assigned to work with the reviewing
authority who perform no investigative or prosecuting function in
connection with a proceeding shall communicate ex parte with the
reviewing authority or the presiding officer, or any employee or person
involved in the decisional process in such proceedings with respect to
the merits of that or a factually related proceeding. The reviewing
authority, the presiding officer, or any employee or person involved in
the decisional process of a proceeding shall communicate ex parte with
respect to the merits of that or a factually related proceeding only
with persons employed by or assigned to work with them and who perform
no investigative or prosecuting function in connection with the
proceeding.
Sec. 18b.93 Expeditious treatment.
Requests for expeditious treatment of matters pending before the
reviewing authority or the presiding officer are deemed communications
on the merits, and are improper except when forwarded from parties to a
proceeding and served upon all other parties thereto. Such
communications should be in the form of a motion.
Sec. 18b.94 Matters not prohibited.
A request for information which merely inquires about the status of
a proceeding without discussing issues or expressing points of view is
not deemed an ex parte communication. Such requests should be directed
to the civil rights hearing clerk. Communications with respect to minor
procedural matters or inquiries or emergency requests for extensions of
time are not deemed ex parte communications prohibited by Sec. 18b.92.
Where feasible, however, such communications should be by letter with
copies to all parties. Ex parte communications between a respondent and
the responsible agency official or the Secretary with respect to
securing such respondent's voluntary compliance with any requirement of
part 18 of this chapter are not prohibited.
Sec. 18b.95 Filing of ex parte communications.
A prohibited communication in writing received by the Secretary, the
reviewing authority, or by the presiding officer, shall be made public
by placing it in the correspondence file of the
[[Page 62]]
docket in the case and will not be considered as part of the record for
decision. If the prohibited communication is received orally, a
memorandum setting forth its substance shall be made and filed in the
correspondence section of the docket in the case. A person referred to
in such memorandum may file a comment for inclusion in the docket if the
memorandum is considered to be incorrect.
[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]
PART 19_BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS--Table of Contents
Subpart A_Operation of the Board of Veterans' Appeals
Sec.
19.1 Establishment of the Board.
19.2 Composition of the Board; Titles.
19.3 Assignment of proceedings.
19.4 Principal functions of the Board.
19.5 Criteria governing disposition of appeals.
19.6 [Reserved]
19.7 The decision.
19.8 Content of Board decision, remand, or order in simultaneously
contested claims.
19.9 Further development.
19.10 [Reserved]
19.11 Reconsideration panel.
19.12 Disqualification of Members.
19.13 Delegation of authority to Chairman and Vice Chairman, Board of
Veterans' Appeals.
19.14 Delegation of authority--Appeals regulations.
Subpart B_Appeals Processing by Agency of Original Jurisdiction
19.25 Notification by agency of original jurisdiction of right to
appeal.
19.26 Action by agency of original jurisdiction on Notice of
Disagreement.
19.27 Adequacy of Notice of Disagreement questioned within the agency of
original jurisdiction.
19.28 Determination that a Notice of Disagreement is inadequate
protested by claimant or representative.
19.29 Statement of the Case.
19.30 Furnishing the Statement of the Case and instructions for filing a
Substantive Appeal.
19.31 Supplemental statement of the case.
19.32 Closing of appeal for failure to respond to Statement of the Case.
19.33 Timely filing of Notice of Disagreement or Substantive Appeal
questioned within the agency of original jurisdiction.
19.34 Determination that Notice of Disagreement or Substantive Appeal
was not timely filed protested by claimant or representative.
19.35 Certification of appeals.
19.36 Notification of certification of appeal and transfer of appellate
record.
19.37 Consideration of additional evidence received by the agency of
original jurisdiction after an appeal has been initiated.
19.38 Action by agency of original jurisdiction when remand received.
19.39-19.49 [Reserved]
Subpart C_Administrative Appeals
19.50 Nature and form of administrative appeal.
19.51 Officials authorized to file administrative appeals and time
limits for filing.
19.52 Notification to claimant of filing of administrative appeal.
19.53 Restriction as to change in payments pending determination of
administrative appeals.
19.54-19.74 [Reserved]
Subpart D_Hearings Before the Board of Veterans' Appeals at Department
of Veterans Affairs Field Facilities
19.75 Hearing docket.
19.76 Notice of time and place of hearing before the Board of Veterans'
Appeals at Department of Veterans Affairs field facilities.
19.77-19.99 [Reserved]
Subpart E_Simultaneously Contested Claims
19.100 Notification of right to appeal in simultaneously contested
claims.
19.101 Notice to contesting parties on receipt of Notice of Disagreement
in simultaneously contested claims.
19.102 Notice of appeal to other contesting parties in simultaneously
contested claims.
Appendix A to Part 19--Cross-References
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Source: 57 FR 4104, Feb. 3, 1992, unless otherwise noted.
[[Page 63]]
Subpart A_Operation of the Board of Veterans' Appeals
Sec. 19.1 Establishment of the Board.
The Board of Veterans' Appeals is established by authority of, and
functions pursuant to, title 38, United States Code, chapter 71.
Sec. 19.2 Composition of the Board; Titles.
(a) The Board consists of a Chairman, Vice Chairman, Deputy Vice
Chairmen, Members and professional, administrative, clerical and
stenographic personnel. Deputy Vice Chairmen are Members of the Board
who are appointed to that office by the Secretary upon the
recommendation of the Chairman.
(b) A member of the Board (other than the Chairman) may also be
known as a Veterans Law Judge. An individual designated as an acting
member pursuant to 38 U.S.C. 7101(c)(1) may also be known as an acting
Veterans Law Judge.
(Authority: 38 U.S.C. 501(a), 512, 7101(a))
[68 FR 6625, Feb. 10, 2003]
Sec. 19.3 Assignment of proceedings.
(a) Assignment. The Chairman may assign a proceeding instituted
before the Board, including any motion, to an individual Member or to a
panel of three or more Members for adjudication or other appropriate
action. The Chairman may participate in a proceeding assigned to a panel
of Members.
(Authority: 38 U.S.C. 7102)
(b) Inability to serve. If a Member is unable to participate in the
disposition of a proceeding or motion to which the Member has been
assigned, the Chairman may assign the proceeding or motion to another
Member or substitute another Member (in the case of a proceeding or
motion assigned to a panel).
(Authority: 38 U.S.C. 7101(a), 7102)
[61 FR 20448, May 7, 1996]
Sec. 19.4 Principal functions of the Board.
The principal functions of the Board are to make determinations of
appellate jurisdiction, consider all applications on appeal properly
before it, conduct hearings on appeal, evaluate the evidence of record,
and enter decisions in writing on the questions presented on appeal.
(Authority: 38 U.S.C. 7102, 7104, 7107)
Sec. 19.5 Criteria governing disposition of appeals.
In the consideration of appeals, the Board is bound by applicable
statutes, regulations of the Department of Veterans Affairs, and
precedent opinions of the General Counsel of the Department of Veterans
Affairs. The Board is not bound by Department manuals, circulars, or
similar administrative issues.
(Authority: 38 U.S.C. 501(a), 7104(c))
Sec. 19.6 [Reserved]
Sec. 19.7 The decision.
(a) Decisions based on entire record. The appellant will not be
presumed to be in agreement with any statement of fact contained in a
Statement of the Case to which no exception is taken. Decisions of the
Board are based on a review of the entire record.
(Authority: 38 U.S.C. 7104(a), 7105(d)(4))
(b) Content. The decision of the Board will be in writing and will
set forth specifically the issue or issues under appellate
consideration. Except with respect to issues remanded to the agency of
original jurisdiction for further development of the case and appeals
which are dismissed because the issue has been resolved by
administrative action or because an appellant seeking nonmonetary
benefits has died while the appeal was pending, the decision will also
include separately stated findings of fact and conclusions of law on all
material issues of fact and law presented on the record, the reasons or
bases for those findings and conclusions, and an order granting or
denying the benefit or benefits sought on appeal or dismissing the
appeal.
(Authority: 38 U.S.C. 7104(d))
[[Page 64]]
(c) A decision by a panel of Members will be by a majority vote of
the panel Members.
[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]
Sec. 19.8 Content of Board decision, remand, or order in simultaneously
contested claims.
The content of the Board's decision, remand, or order in appeals
involving a simultaneously contested claim will be limited to
information that directly affects the issues involved in the contested
claim. Appellate issues that do not involve all of the contesting
parties will be addressed in one or more separate written decisions,
remands, or orders that will be furnished only to the appellants
concerned and their representatives, if any.
(Authority: 5 U.S.C. 552a(b), 38 U.S.C. 5701(a))
[61 FR 68666, Dec. 30, 1996]
Sec. 19.9 Further development.
(a) General. If further evidence, clarification of the evidence,
correction of a procedural defect, or any other action is essential for
a proper appellate decision, a Board Member or panel of Members may:
(1) Remand the case to the agency of original jurisdiction,
specifying the action to be undertaken; or
(2) Direct Board personnel to undertake the action essential for a
proper appellate decision.
(i) Any such action shall comply with the provisions of Sec.
3.159(a) and (c)-(f) of this chapter (relating to VA's assistance to
claimants in developing claims).
(ii) If the Board undertakes to provide the notice required by 38
U.S.C. 5103(a) and/or Sec. 3.159(b)(1) of this chapter, the appellant
shall have not less than 30 days to respond to the notice. If, following
the notice, the Board denies a benefit sought in the pending appeal and
the appellant submits relevant evidence after the Board's decision but
before the expiration of one year following the notice, that evidence
shall be referred to the agency of original jurisdiction. If any
evidence so referred, together with the evidence already of record, is
subsequently found to be the basis of an allowance of that benefit, the
award's effective date will be the same as if the Board had granted the
benefit in the appeal pending when the notice was provided.
(b) Examples. A remand to the agency of original jurisdiction is not
necessary:
(1) To clarify a procedural matter before the Board, including the
appellant's choice of representative before the Board, the issues on
appeal, and requests for a hearing before the Board; or
(2) For the Board to consider an appeal in light of law, including
but not limited to statute, regulation, or court decision, not already
considered by the agency of original jurisdiction.
(c) Scope. This section does not apply to:
(1) The Board's request for an opinion under Rule 901 (Sec. 20.901
of this chapter);
(2) The Board's supplementation of the record with a recognized
medical treatise; and
(3) Matters over which the Board has original jurisdiction described
in Rules 609 and 610 (Sec. Sec. 20.609 and 20.610 of this chapter).
(Authority: 38 U.S.C. 7102, 7103(c), 7104(a)).
[67 FR 3104, Jan. 23, 2002]
Sec. 19.10 [Reserved]
Sec. 19.11 Reconsideration panel.
(a) Assignment of Members. When a motion for reconsideration is
allowed, the Chairman will assign a panel of three or more Members of
the Board, which may include the Chairman, to conduct the
reconsideration.
(b) Number of Members constituting a reconsideration panel. In the
case of a matter originally heard by a single Member of the Board, the
case shall be referred to a panel of three Members of the Board. In the
case of a matter originally heard by a panel of Members of the Board,
the case shall be referred to an enlarged panel, consisting of three or
more Members than the original panel. In order to obtain a majority
opinion, the number of Members assigned to a reconsideration panel may
be increased in successive increments of three.
(c) Members included in the reconsideration panel. The
reconsideration panel
[[Page 65]]
may not include any Member who participated in the decision that is
being reconsidered. Additional Members will be assigned in accordance
with paragraph (b) of this section.
(Authority: 38 U.S.C. 7102, 7103)
[61 FR 20449, May 7, 1996]
Sec. 19.12 Disqualification of Members.
(a) General. A Member of the Board will disqualify himself or
herself in a hearing or decision on an appeal if that appeal involves a
determination in which he or she participated or had supervisory
responsibility in the agency of original jurisdiction prior to his or
her appointment as a Member of the Board, or where there are other
circumstances which might give the impression of bias either for or
against the appellant.
(Authority: 38 U.S.C. 7102, 7104)
(b) Appeal on same issue subsequent to decision on administrative
appeal. Any Member of the Board who made the decision on an
administrative appeal will disqualify himself or herself from acting on
a subsequent appeal by the claimant on the same issue.
(Authority: 38 U.S.C. 7102, 7104, 7106)
(c) Disqualification of Members by the Chairman. The Chairman of the
Board, on his or her own motion, may disqualify a Member from acting in
an appeal on the grounds set forth in paragraphs (a) and (b) of this
section and in those cases where a Member is unable or unwilling to act.
(Authority: 38 U.S.C. 7102, 7104, 7106)
[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]
Sec. 19.13 Delegation of authority to Chairman and Vice Chairman,
Board of Veterans' Appeals.
The Chairman and/or Vice Chairman have authority delegated by the
Secretary of Veterans Affairs to:
(a) Approve the assumption of appellate jurisdiction of an
adjudicative determination which has not become final in order to grant
a benefit, and
(b) Order VA Central Office investigations of matters before the
Board.
(Authority: 38 U.S.C. 303, 512(a))
Sec. 19.14 Delegation of authority--Appeals regulations.
(a) The authority exercised by the Chairman of the Board of
Veterans' Appeals described in Sec. Sec. 19.3(b), 19.3(c), and 19.12(c)
of this part may also be exercised by the Vice Chairman of the Board.
(b) The authority exercised by the Chairman of the Board of
Veterans' Appeals described in Sec. Sec. 19.3(d) and 19.11 of this part
may also be exercised by the Vice Chairman of the Board and by Deputy
Vice Chairmen of the Board.
(Authority: 38 U.S.C. 512(a), 7102, 7104)
Subpart B_Appeals Processing by Agency of Original Jurisdiction
Sec. 19.25 Notification by agency of original jurisdiction of right to
appeal.
The claimant and his or her representative, if any, will be informed
of appellate rights provided by 38 U.S.C. chapters 71 and 72, including
the right to a personal hearing and the right to representation. The
agency of original jurisdiction will provide this information in each
notification of a determination of entitlement or nonentitlement to
Department of Veterans Affairs benefits.
(Authority: 38 U.S.C. 7105(a))
Sec. 19.26 Action by agency of original jurisdiction on Notice of
Disagreement.
When a Notice of Disagreement is timely filed, the agency of
original jurisdiction must reexamine the claim and determine if
additional review or development is warranted. When a Notice of
Disagreement is received following a multiple-issue determination and it
is not clear which issue, or issues, the claimant desires to appeal,
clarification sufficient to identify the issue, or issues, being
appealed should be requested from the claimant or his or her
representative. If no preliminary action is required, or when it is
completed, the agency of original jurisdiction must prepare a Statement
of the Case pursuant to Sec. 19.29 of this part, unless the matter is
resolved by granting the benefits sought on appeal or the Notice of
Disagreement is withdrawn
[[Page 66]]
by the appellant or his or her representative.
(Authority: 38 U.S.C. 7105(d)(1))
Sec. 19.27 Adequacy of Notice of Disagreement questioned within the
agency of original jurisdiction.
If, within the agency of original jurisdiction, there is a question
as to the adequacy of a Notice of Disagreement, the procedures for an
administrative appeal must be followed.
(Authority: 38 U.S.C. 7105, 7106)
Sec. 19.28 Determination that a Notice of Disagreement is inadequate
protested by claimant or representative.
Whether a Notice of Disagreement is adequate is an appealable issue.
If the claimant or his or her representative protests an adverse
determination made by the agency of original jurisdiction with respect
to the adequacy of a Notice of Disagreement, the claimant will be
furnished a Statement of the Case.
(Authority: 38 U.S.C. 7105)
Sec. 19.29 Statement of the Case.
The Statement of the Case must be complete enough to allow the
appellant to present written and/or oral arguments before the Board of
Veterans' Appeals. It must contain:
(a) A summary of the evidence in the case relating to the issue or
issues with which the appellant or representative has expressed
disagreement;
(b) A summary of the applicable laws and regulations, with
appropriate citations, and a discussion of how such laws and regulations
affect the determination; and
(c) The determination of the agency of original jurisdiction on each
issue and the reasons for each such determination with respect to which
disagreement has been expressed.
(Authority: 38 U.S.C. 7105(d)(1))
Sec. 19.30 Furnishing the Statement of the Case and instructions for
filing a Substantive Appeal.
(a) To whom the Statement of the Case is furnished. The Statement of
the Case will be forwarded to the appellant at the latest address of
record and a separate copy provided to his or her representative (if
any).
(b) Information furnished with the Statement of the Case. With the
Statement of the Case, the appellant and the representative will be
furnished information on the right to file, and time limit for filing, a
Substantive Appeal; information on hearing and representation rights;
and a VA Form 9, ``Appeal to Board of Veterans' Appeals.''
(Authority: 38 U.S.C. 7105)
[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]
Sec. 19.31 Supplemental statement of the case.
(a) Purpose and limitations. A ``Supplemental Statement of the
Case,'' so identified, is a document prepared by the agency of original
jurisdiction to inform the appellant of any material changes in, or
additions to, the information included in the Statement of the Case or
any prior Supplemental Statement of the Case. In no case will a
Supplemental Statement of the Case be used to announce decisions by the
agency of original jurisdiction on issues not previously addressed in
the Statement of the Case, or to respond to a notice of disagreement on
newly appealed issues that were not addressed in the Statement of the
Case. The agency of original jurisdiction will respond to notices of
disagreement on newly appealed issues not addressed in the Statement of
the Case using the procedures in Sec. Sec. 19.29 and 19.30 of this part
(relating to statements of the case).
(b) When furnished. The agency of original jurisdiction will furnish
the appellant and his or her representative, if any, a Supplemental
Statement of the Case if:
(1) The agency of original jurisdiction receives additional
pertinent evidence after a Statement of the Case or the most recent
Supplemental Statement of the Case has been issued and before the appeal
is certified to the Board of Veterans' Appeals and the appellate record
is transferred to the Board;
(2) A material defect in the Statement of the Case or a prior
Supplemental statement of the Case is discovered; or
[[Page 67]]
(3) For any other reason the Statement of the Case or a prior
Supplemental Statement of the Case is inadequate.
(c) Pursuant to remand from the Board. The agency of original
jurisdiction will issue a Supplemental Statement of the Case if,
pursuant to a remand by the Board, it develops the evidence or cures a
procedural defect, unless:
(1) The only purpose of the remand is to assemble records previously
considered by the agency of original jurisdiction and properly discussed
in a prior Statement of the Case or Supplemental Statement of the Case;
or
(2) The Board specifies in the remand that a Supplemental Statement
of the Case is not required.
(Authority: 38 U.S.C. 7105(d)).
[67 FR 3104, Jan. 23, 2002]
Sec. 19.32 Closing of appeal for failure to respond to Statement
of the Case.
The agency of original jurisdiction may close the appeal without
notice to an appellant or his or her representative for failure to
respond to a Statement of the Case within the period allowed. However,
if a Substantive Appeal is subsequently received within the 1-year
appeal period (60-day appeal period for simultaneously contested
claims), the appeal will be considered to be reactivated.
(Authority: 38 U.S.C. 7105(d)(3))
Sec. 19.33 Timely filing of Notice of Disagreement or Substantive Appeal
questioned within the agency of original jurisdiction.
If, within the agency of original jurisdiction, there is a question
as to the timely filing of a Notice of Disagreement or Substantive
Appeal, the procedures for an administrative appeal must be followed.
(Authority: 38 U.S.C. 7105, 7106)
Sec. 19.34 Determination that Notice of Disagreement or Substantive
Appeal was not timely filed protested by claimant or representative.
Whether a Notice of Disagreement or Substantive Appeal has been
filed on time is an appealable issue. If the claimant or his or her
representative protests an adverse determination made by the agency of
original jurisdiction with respect to timely filing of the Notice of
Disagreement or Substantive Appeal, the claimant will be furnished a
Statement of the Case.
(Authority: 38 U.S.C. 7105)
Sec. 19.35 Certification of appeals.
Following receipt of a timely Substantive Appeal, the agency of
original jurisdiction will certify the case to the Board of Veterans'
Appeals. Certification is accomplished by the completion of VA Form 8,
``Certification of Appeal.'' The certification is used for
administrative purposes and does not serve to either confer or deprive
the Board of Veterans' Appeals of jurisdiction over an issue.
(Authority: 38 U.S.C. 7105)
[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 66 FR
53339, Oct. 22, 2001]
Sec. 19.36 Notification of certification of appeal and transfer of
appellate record.
When an appeal is certified to the Board of Veterans' Appeals for
appellate review and the appellate record is transferred to the Board,
the appellant and his or her representative, if any, will be notified in
writing of the certification and transfer and of the time limit for
requesting a change in representation, for requesting a personal
hearing, and for submitting additional evidence described in Rule of
Practice 1304 (Sec. 20.1304 of this chapter).
(Authority: 38 U.S.C. 7105)
Sec. 19.37 Consideration of additional evidence received by the
agency of original jurisdiction after an appeal has been initiated.
(a) Evidence received prior to transfer of records to Board of
Veterans' Appeals. Evidence received by the agency of original
jurisdiction prior to transfer of the records to the Board of Veterans'
Appeals after an appeal has been initiated (including evidence received
after certification has been completed) will be referred to the
appropriate rating or authorization activity for review and disposition.
If the Statement of the Case and any prior Supplemental Statements of
the Case were prepared
[[Page 68]]
before the receipt of the additional evidence, a Supplemental Statement
of the Case will be furnished to the appellant and his or her
representative as provided in Sec. 19.31 of this part, unless the
additional evidence received duplicates evidence previously of record
which was discussed in the Statement of the Case or a prior Supplemental
Statement of the Case or the additional evidence is not relevant to the
issue, or issues, on appeal.
(b) Evidence received after transfer of records to the Board of
Veterans' Appeals. Additional evidence received by the agency of
original jurisdiction after the records have been transferred to the
Board of Veterans' Appeals for appellate consideration will be forwarded
to the Board if it has a bearing on the appellate issue or issues. The
Board will then determine what action is required with respect to the
additional evidence.
(Authority: 38 U.S.C. 7105(d)(1))
Sec. 19.38 Action by agency of original jurisdiction when remand received.
When a case is remanded by the Board of Veterans' Appeals, the
agency of original jurisdiction will complete the additional development
of the evidence or procedural development required. Following completion
of the development, the case will be reviewed to determine whether the
additional development, together with the evidence which was previously
of record, supports the allowance of all benefits sought on appeal. If
so, the Board and the appellant and his or her representative, if any,
will be promptly informed. If any benefits sought on appeal remain
denied following this review, the agency of original jurisdiction will
issue a Supplemental Statement of the Case concerning the additional
development pertaining to those issues in accordance with the provisions
of Sec. 19.31 of this part. Following the 60-day period allowed for a
response to the Supplemental Statement of the Case pursuant to Rule of
Practice 302, paragraph (c) (Sec. 20.302(c) of this chapter), the case
will be returned to the Board for further appellate processing unless
the appeal is withdrawn or review of the response to the Supplemental
Statement of the Case results in the allowance of all benefits sought on
appeal. Remanded cases will not be closed for failure to respond to the
Supplemental Statement of the Case.
(Authority 38 U.S.C. 7105(d)(1))
Sec. Sec. 19.39-19.49 [Reserved]
Subpart C_Administrative Appeals
Sec. 19.50 Nature and form of administrative appeal.
(a) General. An administrative appeal from an agency of original
jurisdiction determination is an appeal taken by an official of the
Department of Veterans Affairs authorized to do so to resolve a conflict
of opinion or a question pertaining to a claim involving benefits under
laws administered by the Department of Veterans Affairs. Such appeals
may be taken not only from determinations involving dissenting opinions,
but also from unanimous determinations denying or allowing the benefit
claimed in whole or in part.
(b) Form of Appeal. An administrative appeal is entered by a
memorandum entitled ``Administrative Appeal'' in which the issues and
the basis for the appeal are set forth.
(Authority: 38 U.S.C. 7106)
Sec. 19.51 Officials authorized to file administrative appeals and
time limits for filing.
The Secretary of Veterans Affairs authorizes certain officials of
the Department of Veterans Affairs to file administrative appeals within
specified time limits, as follows:
(a) Central Office--(1) Officials. The Under Secretary for Benefits
or a service director of the Veterans Benefits Administration, the Under
Secretary for Health or a service director of the Veterans Health
Administration, and the General Counsel.
(2) Time limit. Such officials must file an administrative appeal
within 1 year from the date of mailing notice of such determination to
the claimant.
(b) Agencies of original jurisdiction--(1) Officials. Directors,
adjudication officers, and officials at comparable levels in field
offices deciding any claims for
[[Page 69]]
benefits, from any determination originating within their established
jurisdiction.
(2) Time limit. The Director or comparable official must file an
administrative appeal within 6 months from the date of mailing notice of
the determination to the claimant. Officials below the level of Director
must do so within 60 days from such date.
(c) The date of mailing. With respect to paragraphs (a) and (b) of
this section, the date of mailing notice of the determination to the
claimant will be presumed to be the same as the date of the letter of
notification to the claimant.
(Authority: 38 U.S.C. 7106)
[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]
Sec. 19.52 Notification to claimant of filing of administrative appeal.
When an administrative appeal is entered, the claimant and his or
her representative, if any, will be promptly furnished a copy of the
memorandum entitled ``Administrative Appeal,'' or an adequate summary
thereof, outlining the question at issue. They will be allowed a period
of 60 days to join in the appeal if they so desire. The claimant will
also be advised of the effect of such action and of the preservation of
normal appeal rights if he or she does not elect to join in the
administrative appeal.
(Authority: 38 U.S.C. 7106)
Sec. 19.53 Restriction as to change in payments pending determination
of administrative appeals.
If an administrative appeal is taken from a review or determination
by the agency of original jurisdiction pursuant to Sec. Sec. 19.50 and
19.51 of this part, that review or determination may not be used to
effect any change in payments until after a decision is made by the
Board of Veterans' Appeals.
(Authority: 38 U.S.C. 7106)
Sec. Sec. 19.54-19.74 [Reserved]
Subpart D_Hearings Before the Board of Veterans' Appeals at Department
of Veterans Affairs Field Facilities
Sec. 19.75 Field hearing docket.
Hearings on appeal held at Department of Veterans Affairs field
facilities will be scheduled for each area served by a regional office
in accordance with the place of each case on the Board's docket,
established under Sec. 20.900 of this chapter, relative to other cases
for which hearings are scheduled to be held within that area. Such
scheduling is subject to Sec. 20.704(f) of this chapter pertaining to
advancement of a case on the hearing docket.
(Authority: 38 U.S.C. 7107)
[65 FR 14471, Mar. 17, 2000]
Sec. 19.76 Notice of time and place of hearing before the Board of
Veterans' Appeals at Department of Veterans Affairs field facilities.
The agency of original jurisdiction will notify the appellant and
his or her representative of the place and time of a hearing before the
Board of Veterans' Appeals at a Department of Veterans Affairs field
facility not less than 30 days prior to the hearing date. This time
limitation does not apply to hearings which have been rescheduled due to
a postponement requested by an appellant, or on his or her behalf, or
due to the prior failure of an appellant to appear at a scheduled
hearing before the Board of Veterans' Appeals at a Department of
Veterans Affairs field facility with good cause. The right to notice at
least 30 days in advance will be deemed to have been waived if an
appellant accepts an earlier hearing date due to the cancellation of
another previously scheduled hearing.
(Authority: 38 U.S.C. 7107)
[61 FR 20449, May 7, 1996, as amended at 61 FR 43008, Aug. 20, 1996]
[[Page 70]]
Sec. Sec. 19.77-19.99 [Reserved]
Subpart E_Simultaneously Contested Claims
Sec. 19.100 Notification of right to appeal in simultaneously
contested claims.
All interested parties will be specifically notified of the action
taken by the agency of original jurisdiction in a simultaneously
contested claim and of the right and time limit for initiation of an
appeal, as well as hearing and representation rights.
(Authority: 38 U.S.C. 7105A(a))
Sec. 19.101 Notice to contesting parties on receipt of Notice of
Disagreement in simultaneously contested claims.
Upon the filing of a Notice of Disagreement in a simultaneously
contested claim, all interested parties and their representatives will
be furnished a copy of the Statement of the Case. The Statement of the
Case so furnished will contain only information which directly affects
the payment or potential payment of the benefit(s) which is (are) the
subject of that contested claim. The interested parties who filed
Notices of Disagreement will be duly notified of the right to file, and
the time limit within which to file, a Substantive Appeal and will be
furnished with VA Form 9, ``Appeal to Board of Veterans' Appeals.''
(Authority: 38 U.S.C. 7105A(b))
[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]
Sec. 19.102 Notice of appeal to other contesting parties in simultaneously
contested claims.
When a Substantive Appeal is filed in a simultaneously contested
claim, the content of the Substantive Appeal will be furnished to the
other contesting parties to the extent that it contains information
which could directly affect the payment or potential payment of the
benefit which is the subject of the contested claim.
(Authority: 38 U.S.C. 7105A(b))
Appendix A to Part 19--Cross-References
------------------------------------------------------------------------
Title of cross-
Sec. Cross-reference referenced material or
comment
------------------------------------------------------------------------
19.5........... 38 CFR 14.507(b)............. See re ``precedent
opinions'' of the
General Counsel of the
Department of Veterans
Affairs.
38 CFR 20.1303............... Rule 1303.
Nonprecedential nature
of Board decisions.
19.7........... 38 CFR 20.905................ Rule 905. Vacating a
decision.
19.13.......... 38 CFR 2.66.................. Contains similar
provisions.
19.25.......... 38 CFR 19.52................. Notification to claimant
of filing of
administrative appeal.
38 CFR 19.100................ Notification of right to
appeal in
simultaneously
contested claims.
19.26.......... 38 CFR 20.302................ Rule 302. Time limit for
filing Notice of
Disagreement,
Substantive Appeal, and
response to
Supplemental Statement
of the Case.
19.27.......... 38 CFR 19.50-19.53........... See re administrative
appeals.
19.30.......... 38 CFR 20.202................ Rule 202. Substantive
Appeal.
19.32.......... 38 CFR 20.302................ Rule 302. Time limit for
filing Notice of
Disagreement,
Substantive Appeal, and
response to
Supplemental Statement
of the Case.
38 CFR 20.501................ Rule 501. Time limits
for filing Notice of
Disagreement,
Substantive Appeal, and
response to
Supplemental Statement
of the Case in
simultaneously
contested claims.
19.33.......... 38 CFR 19.50-19.53........... See re administrative
appeals.
19.50.......... 38 CFR 19.53................. Restriction as to change
in payments pending
determination of
administrative appeals.
19.76.......... 38 CFR 20.704................ Rule 704. Scheduling and
notice of hearings
conducted by traveling
Sections of the Board
of Veterans' Appeals at
Department of Veterans
Affairs field
facilities.
19.100......... 38 CFR 20.713................ Rule 713. Hearings in
simultaneously
contested claims.
19.101......... 38 CFR 19.30................. Furnishing the Statement
of the Case and
instructions for filing
a Substantive Appeal.
------------------------------------------------------------------------
[[Page 71]]
PART 20_BOARD OF VETERANS' APPEALS: RULES OF PRACTICE--Table of Contents
Subpart A_General
Sec.
20.1 Rule 1. Purpose and construction of Rules of Practice.
20.2 Rule 2. Procedure in absence of specific Rule of Practice.
20.3 Rule 3. Definitions.
20.4-20.99 [Reserved]
Subpart B_The Board
20.100 Rule 100. Name, business hours, and mailing address of the Board.
20.101 Rule 101. Jurisdiction of the Board.
20.102 Rule 102. Delegation of authority--Rules of Practice.
20.103-20.199 [Reserved]
Subpart C_Commencement and Perfection of Appeal
20.200 Rule 200. What constitutes an appeal.
20.201 Rule 201. Notice of Disagreement.
20.202 Rule 202. Substantive Appeal.
20.203 [Reserved]
20.204 Rule 204. Withdrawal of Appeal.
20.205-20.299 [Reserved]
Subpart D_Filing
20.300 Rule 300. Place of filing Notice of Disagreement and Substantive
Appeal.
20.301 Rule 301. Who can file an appeal.
20.302 Rule 302. Time limit for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of
the Case.
20.303 Rule 303. Extension of time for filing Substantive Appeal and
response to Supplemental Statement of the Case.
20.304 Rule 304. Filing additional evidence does not extend time limit
for appeal.
20.305 Rule 305. Computation of time limit for filing.
20.306 Rule 306. Legal holidays.
20.307-20.399 [Reserved]
Subpart E_Administrative Appeals
20.400 Rule 400. Action by claimant or representative on notification of
administrative appeal.
20.401 Rule 401. Effect of decision on administrative or merged appeal
on claimant's appellate rights.
20.402-20.499 [Reserved]
Subpart F_Simultaneously Contested Claims
20.500 Rule 500. Who can file an appeal in simultaneously contested
claims.
20.501 Rule 501. Time limits for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of
the Case in simultaneously contested claims.
20.502 Rule 502. Time limit for response to appeal by another contesting
party in a simultaneously contested claim.
20.503 Rule 503. Extension of time for filing a Substantive Appeal in
simultaneously contested claims.
20.504 Rule 504. Notices sent to last addresses of record in
simultaneously contested claims.
20.505-20.599 [Reserved]
Subpart G_Representation
20.600 Rule 600. Right to representation.
20.601 Rule 601. Only one representative recognized.
20.602 Rule 602. Representation by recognized organizations.
20.603 Rule 603. Representation by attorneys-at-law.
20.604 Rule 604. Representation by agents.
20.605 Rule 605. Other persons as representative.
20.606 Rule 606. Legal interns, law students and paralegals.
20.607 Rule 607. Revocation of a representative's authority to act.
20.608 Rule 608. Withdrawal of services by a representative.
20.609 Rule 609. Payment of representative's fees in proceedings before
Department of Veterans Affairs field personnel and before the
Board of Veterans' Appeals.
20.610 Rule 610. Payment of representative's expenses in proceedings
before Department of Veterans Affairs field personnel and
before the Board of Veterans' Appeals.
20.612-20.699 [Reserved]
Subpart H_Hearings on Appeal
20.700 Rule 700. General.
20.701 Rule 701. Who may present oral argument.
20.702 Rule 702. Scheduling and notice of hearings conducted by the
Board of Veterans' Appeals in Washington, DC.
20.703 Rule 703. When a hearing before the Board of Veterans' Appeals at
a Department of Veterans Affairs field facility may be
requested.
20.704 Rule 704. Scheduling and notice of hearings conducted by the
Board of Veterans' Appeals at Department of Veterans Affairs
field facilities.
20.705 Rule 705. Where hearings are conducted.
20.706 Rule 706. Functions of the presiding Member.
20.707 Rule 707. Designation of Member or Members to conduct the
hearing.
[[Page 72]]
20.708 Rule 708. Prehearing conference.
20.709 Rule 709. Procurement of additional evidence following a hearing.
20.710 Rule 710. Witnesses at hearings.
20.711 Rule 711. Subpoenas.
20.712 Rule 712. Expenses of appellants, representatives, and witnesses
incident to hearings not reimbursable by the Government.
20.713 Rule 713. Hearings in simultaneously contested claims.
20.714 Rule 714. Record of hearing.
20.715 Rule 715. Recording of hearing by appellant or representative.
20.716 Rule 716. Correction of hearing transcripts.
20.717 Rule 717. Loss of hearing tapes or transcripts--motion for new
hearing.
20.718-20.799 [Reserved]
Subpart I_Evidence
20.800 Rule 800. Submission of additional evidence after initiation of
appeal.
20.801-20.899 [Reserved]
Subpart J_Action by the Board
20.900 Rule 900. Order of consideration of appeals.
20.901 Rule 901. Medical opinions and opinions of the General Counsel.
20.902 Rule 902. Filing of requests for the procurement of opinions.
20.903 Rule 903. Notification of evidence secured and law to be
considered by the Board and opportunity for response.
20.904 Rule 904. Vacating a decision.
20.905-20.999 [Reserved]
Subpart K_Reconsideration
20.1000 Rule 1000. When reconsideration is accorded.
20.1001 Rule 1001. Filing and disposition of motion for reconsideration.
20.1002 Rule 1002. [Reserved]
20.1003 Rule 1003. Hearings on reconsideration.
20.1004-20.1099 [Reserved]
Subpart L_Finality
20.1100 Rule 1100. Finality of decisions of the Board.
20.1101 Rule 1101. [Reserved]
20.1102 Rule 1102. Harmless error.
20.1103 Rule 1103. Finality of determinations of the agency of original
jurisdiction where appeal is not perfected.
20.1104 Rule 1104. Finality of determinations of the agency of original
jurisdiction affirmed on appeal.
20.1105 Rule 1105. New claim after promulgation of appellate decision.
20.1106 Rule 1106. Claim for death benefits by survivor--prior
unfavorable decisions during veteran's lifetime.
20.1107-20.1199 [Reserved]
Subpart M_Privacy Act
20.1200 Rule 1200. Privacy Act request--appeal pending.
20.1201 Rule 1201. Amendment of appellate decisions.
20.1202-20.1299 [Reserved]
Subpart N_Miscellaneous
20.1300 Rule 1300. Removal of Board records.
20.1301 Rule 1301. Disclosure of information.
20.1302 Rule 1302. Death of appellant during pendency of appeal.
20.1303 Rule 1303. Nonprecedential nature of Board decisions.
20.1304 Rule 1304. Request for change in representation, request for
personal hearing, or submission of additional evidence
following certification of an appeal to the Board of Veterans'
Appeals.
Subpart O_Revision of Decisions on Grounds of Clear and Unmistakable
Error
20.1400 Rule 1400. Motions to revise Board decisions.
20.1401 Rule 1401. Definitions.
20.1402 Rule 1402. Inapplicability of other rules.
20.1403 Rule 1403. What constitutes clear and unmistakable error; what
does not.
20.1404 Rule 1404. Filing and pleading requirements; withdrawal.
20.1405 Rule 1405. Disposition.
20.1406 Rule 1406. Effect of revision; discontinuance or reduction of
benefits.
20.1407 Rule 1407. Motions by the Board.
20.1408 Rule 1408. Special rules for simultaneously contested claims.
20.1409 Rule 1409. Finality and appeal.
20.1410 Rule 1410. Stays pending court action.
20.1411 Rule 1411. Relationship to other statutes.
Appendix A to Part 20--Cross-References
Authority: 38 U.S.C. 501(a) and as noted in specific sections.
Source: 57 FR 4109, Feb. 3, 1992, unless otherwise noted.
Subpart A_General
Sec. 20.1 Rule 1. Purpose and construction of Rules of Practice.
(a) Purpose. These rules establish the practices and procedures
governing appeals to the Board of Veterans' Appeals.
(Authority: 38 U.S.C. 501(a), 7102, 7104)
[[Page 73]]
(b) Construction. These rules are to be construed to secure a just
and speedy decision in every appeal.
(Authority: 38 U.S.C. 501(a), 5107, 7104)
Sec. 20.2 Rule 2. Procedure in absence of specific Rule of Practice.
Where in any instance there is no applicable rule or procedure, the
Chairman may prescribe a procedure which is consistent with the
provisions of title 38, United States Code, and these rules.
(Authority: 38 U.S.C. 501(a), 512(a), 7102, 7104)
Sec. 20.3 Rule 3. Definitions.
As used in these Rules:
(a) Agency of original jurisdiction means the Department of Veterans
Affairs regional office, medical center, clinic, cemetery, or other
Department of Veterans Affairs facility which made the initial
determination on a claim or, if the applicable records are later
permanently transferred to another Department of Veterans Affairs
facility, its successor.
(b) Agent means a person who has met the standards and
qualifications for accreditation outlined in Sec. 14.629(b) of this
chapter and who has been properly designated under the provisions of
Rule 604 (Sec. 20.604 of this part). It does not include
representatives recognized under Rules 602, 603, or 605 (Sec. 20.602,
20.603, or Sec. 20.605 of this part).
(c) Appellant means a claimant who has initiated an appeal to the
Board of Veterans' Appeals by filing a Notice of Disagreement pursuant
to the provisions of 38 U.S.C. 7105.
(d) Attorney-at-law means a member in good standing of a State bar.
(e) Benefit means any payment, service, commodity, function, or
status, entitlement to which is determined under laws administered by
the Department of Veterans Affairs pertaining to veterans and their
dependents and survivors.
(f) Claim means application made under title 38, United States Code,
and implementing directives for entitlement to Department of Veterans
Affairs benefits or for the continuation or increase of such benefits,
or the defense of a proposed agency adverse action concerning benefits.
(g) Claimant means a person who has filed a claim, as defined by
paragraph (f) of this section.
(h) Electronic hearing means a hearing on appeal in which an
appellant or a representative participates, through voice transmission
or through picture and voice transmission, by electronic or other means,
in a hearing with a Member or Members sitting at the Board's principal
location in Washington, DC.
(i) Hearing on appeal means a hearing conducted after a Notice of
Disagreement has been filed in which argument and/or testimony is
presented concerning the determination, or determinations, by the agency
of original jurisdiction being appealed.
(j) Law student means an individual pursuing a Juris Doctor or
equivalent degree at a school approved by a recognized accrediting
association.
(k) Legal intern means a graduate of a law school, which has been
approved by a recognized accrediting association, who has not yet been
admitted to a State bar.
(l) Motion means a request that the Board rule on some question
which is subsidiary to the ultimate decision on the outcome of an
appeal. For example, the questions of whether a representative's fees
are reasonable or whether additional evidence may be submitted more than
90 days after certification of an appeal to the Board are raised by
motion (see Rule 609, paragraph (i), and Rule 1304, paragraph (b)
Sec. Sec. 20.609(i) and 20.1304(b) of this part). Unless raised orally
at a personal hearing before Members of the Board, motions for
consideration by the Board must be made in writing. No formal type of
document is required. The motion may be in the form of a letter which
contains the necessary information.
(m) Paralegal means a graduate of a course of paralegal instruction
given by a school which has been approved by a recognized accrediting
association, or an individual who has equivalent legal experience.
(n) Past-due benefits means a nonrecurring payment resulting from a
benefit, or benefits, granted on appeal or awarded on the basis of a
claim reopened after a denial by the Board of Veterans' Appeals or the
lump sum
[[Page 74]]
payment which represents the total amount of recurring cash payments
which accrued between the effective date of the award, as determined by
applicable laws and regulations, and the date of the grant of the
benefit by the agency of original jurisdiction, the Board of Veterans'
Appeals, or an appellate court.
(o) Presiding Member means that Member of the Board who presides
over a hearing, whether conducted as a single Member or panel hearing.
(p) Simultaneously contested claim refers to the situation in which
the allowance of one claim results in the disallowance of another claim
involving the same benefit or the allowance of one claim results in the
payment of a lesser benefit to another claimant.
(q) State includes any State, possession, territory, or Commonwealth
of the United States, as well as the District of Columbia.
(Authority: 38 U.S.C. 501(a))
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 67 FR
36104, May 23, 2002]
Sec. Sec. 20.4-20.99 [Reserved]
Subpart B_The Board
Sec. 20.100 Rule 100. Name, business hours, and mailing address of the
Board.
(a) Name. The name of the Board is the Board of Veterans' Appeals.
(b) Business hours. The Board is open during business hours on all
days except Saturday, Sunday and legal holidays. Business hours are from
8 a.m. to 4:30 p.m.
(c) Mailing address. Except as otherwise noted in these Rules, mail
to the Board must be addressed to: Chairman (01), Board of Veterans'
Appeals, 810 Vermont Avenue NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7101(a))
Sec. 20.101 Rule 101. Jurisdiction of the Board.
(a) General. All questions of law and fact necessary to a decision
by the Secretary of Veterans Affairs under a law that affects the
provision of benefits by the Secretary to veterans or their dependents
or survivors are subject to review on appeal to the Secretary. Decisions
in such appeals are made by the Board of Veterans' Appeals. In its
decisions, the Board is bound by applicable statutes, the regulations of
the Department of Veterans Affairs and precedent opinions of the General
Counsel of the Department of Veterans Affairs. Examples of the issues
over which the Board has jurisdiction include, but are not limited to,
the following:
(1) Entitlement to, and benefits resulting from, service-connected
disability or death (38 U.S.C. chapter 11).
(2) Dependency and indemnity compensation for service-connected
death, including benefits in certain cases of inservice or service-
connected deaths (38 U.S.C. 1312) and certification and entitlement to
death gratuity (38 U.S.C. 1323).
(3) Benefits for survivors of certain veterans rated totally
disabled at time of death (38 U.S.C. 1318).
(4) Entitlement to nonservice-connected disability pension, service
pension and death pension (38 U.S.C. chapter 15).
(5) All-Volunteer Force Educational Assistance Program (38 U.S.C.
chapter 30).
(6) Training and Rehabilitation for Veterans with Service-Connected
Disabilities (38 U.S.C. chapter 31).
(7) Post-Vietnam Era Veterans' Educational Assistance (38 U.S.C.
chapter 32).
(8) Veterans' Educational Assistance (38 U.S.C. chapter 34).
(9) Survivors' and Dependents' Educational Assistance (38 U.S.C.
chapter 35).
(10) Veterans' Job Training (Pub. L. 98-77, as amended; 38 CFR
21.4600 et seq.).
(11) Educational Assistance for Members of the Selected Reserve (10
U.S.C. chapter 106).
(12) Educational Assistance Test Program (10 U.S.C. chapter 107; 38
CFR 21.5701 et seq.).
(13) Educational Assistance Pilot Program (10 U.S.C. chapter 107; 38
CFR 21.5290 et seq.).
(14) Matters arising under National Service Life Insurance and
United States Government Life Insurance (38 U.S.C. chapter 19).
[[Page 75]]
(15) Payment or reimbursement for unauthorized medical expenses (38
U.S.C. 1728).
(16) Burial benefits and burial in National Cemeteries (38 U.S.C.
chapters 23 and 24).
(17) Benefits for persons disabled by medical treatment or
vocational rehabilitation (38 U.S.C. 1151).
(18) Basic eligibility for home, condominium and mobile home loans
as well as waiver of payment of loan guaranty indebtedness (38 U.S.C.
chapter 37, 38 U.S.C. 5302).
(19) Waiver of recovery of overpayments (38 U.S.C. 5302).
(20) Forfeiture of rights, claims or benefits for fraud, treason, or
subversive activities (38 U.S.C. 6102-6105).
(21) Character of discharge (38 U.S.C. 5303).
(22) Determinations as to duty status (38 U.S.C. 101(21)-(24)).
(23) Determinations as to marital status (38 U.S.C. 101(3), 103).
(24) Determination of dependency status as parent or child (38
U.S.C. 101(4), (5)).
(25) Validity of claims and effective dates of benefits (38 U.S.C.
chapter 51).
(26) Apportionment of benefits (38 U.S.C. 5307).
(27) Payment of benefits while a veteran is hospitalized and
questions regarding an estate of an incompetent institutionalized
veteran (38 U.S.C. 5503).
(28) Benefits for surviving spouses and children of deceased
veterans under Public Law 97-377, section 156 (38 CFR 3.812(d)).
(29) Eligibility for automobile and automobile adaptive equipment
assistance (38 U.S.C. chapter 39).
(b) Appellate jurisdiction of determinations of the Veterans Health
Administration. The Board's appellate jurisdiction extends to questions
of eligibility for hospitalization, outpatient treatment, and nursing
home and domiciliary care; for devices such as prostheses, canes,
wheelchairs, back braces, orthopedic shoes, and similar appliances; and
for other benefits administered by the Veterans Health Administration.
Medical determinations, such as determinations of the need for and
appropriateness of specific types of medical care and treatment for an
individual, are not adjudicative matters and are beyond the Board's
jurisdiction. Typical examples of these issues are whether a particular
drug should be prescribed, whether a specific type of physiotherapy
should be ordered, and similar judgmental treatment decisions with which
an attending physician may be faced.
(c) Appeals as to jurisdiction. All claimants have the right to
appeal a determination made by the agency of original jurisdiction that
the Board does not have jurisdictional authority to review a particular
case. Jurisdictional questions which a claimant may appeal, include, but
are not limited to, questions relating to the timely filing and adequacy
of the Notice of Disagreement and the Substantive Appeal.
(d) Authority to determine jurisdiction. The Board may address
questions pertaining to its jurisdictional authority to review a
particular case, including, but not limited to, determining whether
Notices of Disagreement and Substantive Appeals are adequate and timely,
at any stage in a proceeding before it, regardless of whether the agency
of original jurisdiction addressed such question(s). When the Board, on
its own initiative, raises a question as to a potential jurisdictional
defect, all parties to the proceeding and their representative(s), if
any, will be given notice of the potential jurisdictional defect(s) and
granted a period of 60 days following the date on which such notice is
mailed to present written argument and additional evidence relevant to
jurisdiction and to request a hearing to present oral argument on the
jurisdictional question(s). The date of mailing of the notice will be
presumed to be the same as the date stamped on the letter of
notification. The Board may dismiss any case over which it determines it
does not have jurisdiction.
(e) Application of 38 CFR 19.9 and 20.1304. Section 19.9 of this
chapter shall not apply to proceedings to determine the Board's own
jurisdiction. However, the Board may remand a case to an agency of
original jurisdiction in order to obtain assistance in securing evidence
of jurisdictional facts. The time restrictions on requesting a hearing
and submitting additional evidence in Sec. 20.1304 of this part do not
apply to
[[Page 76]]
a hearing requested, or evidence submitted, under paragraph (d) of this
section.
(Authority: 38 U.S.C. 511(a), 7104, 7105, 7108)
[57 FR 4109, Feb. 3, 1992, as amended at 66 FR 53339, Oct. 22, 2001]
Sec. 20.102 Rule 102. Delegation of authority--Rules of Practice.
(a) The authority exercised by the Chairman of the Board of
Veterans' Appeals described in Rule 900(c) (Sec. 20.900(c) of this
part) MAY ALSO be exercised by the Vice Chairman of the Board.
(b) The authority exercised by the Chairman of the Board of
Veterans' Appeals described in Rules 608(b), 717(d), and 1001(c)
(Sec. Sec. 20.608(b), 20.717(d), and 20.1001(c) of this part) may also
be exercised by the Vice Chairman of the Board and by Deputy Vice
Chairmen of the Board.
(c) The authority exercised by the Chairman of the Board of
Veterans' Appeals described in Rules 2 and 606(e) (Sec. Sec. 20.2, and
20.606(e) of this part), may also be exercised by the Vice Chairman of
the Board; by Deputy Vice Chairmen of the Board; and, in connection with
a proceeding or motion assigned to them by the Chairman, by a Member or
Members of the Board.
(Authority: 38 U.S.C. 512(a), 7102, 7104)
[57 FR 4109, Feb. 3, 1992; 57 FR 20055, May 11, 1992; 57 FR 38443, Aug.
25, 1992; 61 FR 20449, May 7, 1996]
Sec. Sec. 20.103-20.199 [Reserved]
Subpart C_Commencement and Perfection of Appeal
Sec. 20.200 Rule 200. What constitutes an appeal.
An appeal consists of a timely filed Notice of Disagreement in
writing and, after a Statement of the Case has been furnished, a timely
filed Substantive Appeal.
(Authority: 38 U.S.C. 7105)
Sec. 20.201 Rule 201. Notice of Disagreement.
A written communication from a claimant or his or her representative
expressing dissatisfaction or disagreement with an adjudicative
determination by the agency of original jurisdiction and a desire to
contest the result will constitute a Notice of Disagreement. While
special wording is not required, the Notice of Disagreement must be in
terms which can be reasonably construed as disagreement with that
determination and a desire for appellate review. If the agency of
original jurisdiction gave notice that adjudicative determinations were
made on several issues at the same time, the specific determinations
with which the claimant disagrees must be identified. For example, if
service connection was denied for two disabilities and the claimant
wishes to appeal the denial of service connection with respect to only
one of the disabilities, the Notice of Disagreement must make that
clear.
(Authority: 38 U.S.C. 7105)
Sec. 20.202 Rule 202. Substantive Appeal.
A Substantive Appeal consists of a properly completed VA Form 9,
``Appeal to Board of Veterans' Appeals,'' or correspondence containing
the necessary information. If the Statement of the Case and any prior
Supplemental Statements of the Case addressed several issues, the
Substantive Appeal must either indicate that the appeal is being
perfected as to all of those issues or must specifically identify the
issues appealed. The Substantive Appeal should set out specific
arguments relating to errors of fact or law made by the agency of
original jurisdiction in reaching the determination, or determinations,
being appealed. To the extent feasible, the argument should be related
to specific items in the Statement of the Case and any prior
Supplemental Statements of the Case. The Board will construe such
arguments in a liberal manner for purposes of determining whether they
raise issues on appeal, but the Board may dismiss any appeal which fails
to allege specific error of fact or law in the determination, or
determinations, being appealed. The Board will not presume that an
appellant agrees with any statement of fact contained in a Statement of
the Case or a Supplemental Statement of the Case which is not
specifically contested. Proper completion and filing of a Substantive
Appeal are
[[Page 77]]
the last actions the appellant needs to take to perfect an appeal.
(Authority: 38 U.S.C. 7105(d)(3)-(5))
(Approved by the Office of Management and Budget under control number
2900-0085)
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]
Sec. 20.203 [Reserved]
Sec. 20.204 Rule 204. Withdrawal of Appeal.
(a) When and by whom filed. Only an appellant, or an appellant's
authorized representative, may withdraw an appeal. An appeal may be
withdrawn as to any or all issues involved in the appeal.
(b) Filing. (1) Form and content. Except for appeals withdrawn on
the record at a hearing, appeal withdrawals must be in writing. They
must include the name of the veteran, the name of the claimant or
appellant if other than the veteran (e.g., a veteran's survivor, a
guardian, or a fiduciary appointed to receive VA benefits on an
individual's behalf), the applicable Department of Veterans Affairs file
number, and a statement that the appeal is withdrawn. If the appeal
involves multiple issues, the withdrawal must specify that the appeal is
withdrawn in its entirety, or list the issue(s) withdrawn from the
appeal.
(2) Where to file. Appeal withdrawals should be filed with the
agency of original jurisdiction until the appellant or representative
filing the withdrawal receives notice that the appeal has been
transferred to the Board. Thereafter, file the withdrawal at the
following address: Director, Management and Administration (014), Board
of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
(3) When effective. Until the appeal is transferred to the Board, an
appeal withdrawal is effective when received by the agency of original
jurisdiction. Thereafter, it is not effective until received by the
Board. A withdrawal received by the Board after the Board issues a final
decision under Rule 1100(a) (Sec. 20.1100(a) of this part) will not be
effective.
(c) Effect of filing. Withdrawal of an appeal will be deemed a
withdrawal of the Notice of Disagreement and, if filed, the Substantive
Appeal, as to all issues to which the withdrawal applies. Withdrawal
does not preclude filing a new Notice of Disagreement and, after a
Statement of the Case is issued, a new Substantive Appeal, as to any
issue withdrawn, provided such filings would be timely under these rules
if the appeal withdrawn had never been filed.
(Authority: 38 U.S.C. 7105(b) and (d))
[68 FR 13236, Mar. 19, 2003]
Sec. Sec. 20.205-20.299 [Reserved]
Subpart D_Filing
Sec. 20.300 Rule 300. Place of filing Notice of Disagreement and
Substantive Appeal.
The Notice of Disagreement and Substantive Appeal must be filed with
the Department of Veterans Affairs office from which the claimant
received notice of the determination being appealed unless notice has
been received that the applicable Department of Veterans Affairs records
have been transferred to another Department of Veterans Affairs office.
In that case, the Notice of Disagreement or Substantive Appeal must be
filed with the Department of Veterans Affairs office which has assumed
jurisdiction over the applicable records.
(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))
Sec. 20.301 Rule 301. Who can file an appeal.
(a) Persons authorized. A Notice of Disagreement and/or a
Substantive Appeal may be filed by a claimant personally, or by his or
her representative if a proper Power of Attorney or declaration of
representation, as applicable, is on record or accompanies such Notice
of Disagreement or Substantive Appeal.
(b) Claimant rated incompetent by Department of Veterans Affairs or
under disability and unable to file. If an appeal is not filed by a
person listed in paragraph (a) of this section, and the claimant is
rated incompetent by the Department of Veterans Affairs or has a
physical, mental, or legal disability which prevents the filing of an
appeal on his or her own behalf, a Notice of
[[Page 78]]
Disagreement and a Substantive Appeal may be filed by a fiduciary
appointed to manage the claimant's affairs by the Department of Veterans
Affairs or a court, or by a person acting as next friend if the
appointed fiduciary fails to take needed action or no fiduciary has been
appointed.
(c) Claimant under disability and able to file. Notwithstanding the
fact that a fiduciary may have been appointed for a claimant, an appeal
filed by a claimant will be accepted.
(Authority: 38 U.S.C. 7105(b)(2))
Sec. 20.302 Rule 302. Time limit for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of the Case.
(a) Notice of Disagreement. Except in the case of simultaneously
contested claims, a claimant, or his or her representative, must file a
Notice of Disagreement with a determination by the agency of original
jurisdiction within one year from the date that that agency mails notice
of the determination to him or her. Otherwise, that determination will
become final. The date of mailing the letter of notification of the
determination will be presumed to be the same as the date of that letter
for purposes of determining whether an appeal has been timely filed.
(Authority: 38 U.S.C. 7105(b)(1))
(b) Substantive Appeal. (1) General. Except in the case of
simultaneously contested claims, a Substantive Appeal must be filed
within 60 days from the date that the agency of original jurisdiction
mails the Statement of the Case to the appellant, or within the
remainder of the 1-year period from the date of mailing of the
notification of the determination being appealed, whichever period ends
later. The date of mailing of the Statement of the Case will be presumed
to be the same as the date of the Statement of the Case and the date of
mailing the letter of notification of the determination will be presumed
to be the same as the date of that letter for purposes of determining
whether an appeal has been timely filed.
(2) Special rule in certain cases where additional evidence is
submitted. Except in the case of simultaneously contested claims, if (i)
a claimant submits additional evidence within 1 year of the date of
mailing of the notification of the determination being appealed, and
(ii) that evidence requires, in accordance with Sec. 19.31 of this
title, that the claimant be furnished a Supplemental Statement of the
Case, then the time to submit a Substantive Appeal shall end not sooner
than 60 days after such Supplemental Statement of the Case is mailed to
the appellant, even if the 60-day period extends beyond the expiration
of the 1-year appeal period.
(Authority: 38 U.S.C. 7105 (b)(1), (d)(3).)
(c) Response to Supplemental Statement of the Case. Where a
Supplemental Statement of the Case is furnished, a period of 60 days
from the date of mailing of the Supplemental Statement of the Case will
be allowed for response. The date of mailing of the Supplemental
Statement of the Case will be presumed to be the same as the date of the
Supplemental Statement of the Case for purposes of determining whether a
response has been timely filed. Provided a Substantive Appeal has been
timely filed in accordance with paragraph (b) of this section, the
response to a Supplemental Statement of the Case is optional and is not
required for the perfection of an appeal.
(Authority: 38 U.S.C. 7105(d)(3))
[57 FR 4109, Feb. 3, 1992; as amended at 66 FR 50318, Oct. 3, 2001; 68
FR 64806, Nov. 17, 2003]
Sec. 20.303 Rule 303. Extension of time for filing Substantive Appeal
and response to Supplemental Statement of the Case.
An extension of the 60-day period for filing a Substantive Appeal,
or the 60-day period for responding to a Supplemental Statement of the
Case when such a response is required, may be granted for good cause. A
request for such an extension must be in writing and must be made prior
to expiration of the time limit for filing the Substantive Appeal or the
response to the Supplemental Statement of the Case. The request for
extension must be filed with the Department of Veterans Affairs office
from which the claimant received notice of the determination
[[Page 79]]
being appealed, unless notice has been received that the applicable
records have been transferred to another Department of Veterans Affairs
office. A denial of a request for extension may be appealed to the
Board.
(Authority: 38 U.S.C. 7105(d)(3))
Sec. 20.304 Rule 304. Filing additional evidence does not extend time
limit for appeal.
Except as provided in Rule 302(b) (Sec. 20.302(b) of this part),
the filing of additional evidence after receipt of notice of an adverse
determination does not extend the time limit for initiating or
completing an appeal from that determination.
(Authority: 38 U.S.C. 7105.)
[57 FR 4109, Feb. 3, 1992; as amended at 66 FR 50318, Oct. 3, 2001]
Sec. 20.305 Rule 305. Computation of time limit for filing.
(a) Acceptance of postmark date. When these Rules require that any
written document be filed within a specified period of time, a response
postmarked prior to expiration of the applicable time limit will be
accepted as having been timely filed. In the event that the postmark is
not of record, the postmark date will be presumed to be five days prior
to the date of receipt of the document by the Department of Veterans
Affairs. In calculating this 5-day period, Saturdays, Sundays and legal
holidays will be excluded.
(b) Computation of time limit. In computing the time limit for
filing a written document, the first day of the specified period will be
excluded and the last day included. Where the time limit would expire on
a Saturday, Sunday, or legal holiday, the next succeeding workday will
be included in the computation.
(Authority: 38 U.S.C. 7105)
Sec. 20.306 Rule 306. Legal holidays.
For the purpose of Rule 305 (Sec. 20.305 of this part), the legal
holidays, in addition to any other day appointed as a holiday by the
President or the Congress of the United States, are as follows: New
Year's Day--January 1; Inauguration Day--January 20 of every fourth year
or, if the 20th falls on a Sunday, the next succeeding day selected for
public observance of the inauguration; Birthday of Martin Luther King,
Jr.--Third Monday in January; Washington's Birthday--Third Monday in
February; Memorial Day--Last Monday in May; Independence Day--July 4;
Labor Day--First Monday in September; Columbus Day--Second Monday in
October; Veterans Day--November 11; Thanksgiving Day--Fourth Thursday in
November; and Christmas Day--December 25. When a holiday occurs on a
Saturday, the Friday immediately before is the legal public holiday.
When a holiday occurs on a Sunday, the Monday immediately after is the
legal public holiday.
(Authority: 5 U.S.C. 6103)
Sec. Sec. 20.307-20.399 [Reserved]
Subpart E_Administrative Appeals
Sec. 20.400 Rule 400. Action by claimant or representative on notification
of administrative appeal.
When an official of the Department of Veterans Affairs enters an
administrative appeal, the claimant and his or her representative, if
any, are notified and given a period of 60 days from the date of mailing
of the letter of notification to join in the administrative appeal. The
date of mailing of the letter of notification will be presumed to be the
same as the date of the letter of notification. If the claimant, or the
representative acting on his or her behalf, elects to join in the
administrative appeal, it becomes a ``merged appeal'' and the rules
governing an appeal initiated by a claimant are for application. The
presentation of evidence or argument by the claimant or his or her
representative in response to notification of the right to join in the
administrative appeal will be construed as an election to join in the
administrative appeal. If the claimant does not authorize the merger, he
or she must hold such evidence or argument in abeyance until resolution
of the administrative appeal.
(Authority: 38 U.S.C. 7106)
[[Page 80]]
Sec. 20.401 Rule 401. Effect of decision on administrative or merged
appeal on claimant's appellate rights.
(a) Merged appeal. If the administrative appeal is merged, the
appellate decision on the merged appeal will constitute final
disposition of the claimant's appellate rights.
(b) Appeal not merged. If the claimant does not authorize merger,
normal appellate rights on the same issue are preserved, and the
Chairman will assign the proceeding to a Member or panel of Members of
the Board who did not make the decision on the administrative appeal.
The period of time from the date of notification to the claimant of the
administrative appeal to the date of the Board's decision on the
administrative appeal is not chargeable to the claimant for purposes of
determining the time limit for perfecting his or her separate appeal.
(Authority: 38 U.S.C. 7106)
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]
Sec. Sec. 20.402-20.499 [Reserved]
Subpart F_Simultaneously Contested Claims
Sec. 20.500 Rule 500. Who can file an appeal in simultaneously contested
claims.
In a simultaneously contested claim, any claimant or representative
of a claimant may file a Notice of Disagreement or Substantive Appeal
within the time limits set out in Rule 501 (Sec. 20.501 of this part).
(Authority: 38 U.S.C. 7105(b)(2), 7105A)
Sec. 20.501 Rule 501. Time limits for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of the
Case in simultaneously contested claims.
(a) Notice of Disagreement. In simultaneously contested claims, the
Notice of Disagreement from the person adversely affected must be filed
within 60 days from the date of mailing of the notification of the
determination to him or her; otherwise, that determination will become
final. The date of mailing of the letter of notification will be
presumed to be the same as the date of that letter for purposes of
determining whether a Notice of Disagreement has been timely filed.
(Authority: 38 U.S.C. 7105A(a))
(b) Substantive Appeal. In the case of simultaneously contested
claims, a Substantive Appeal must be filed within 30 days from the date
of mailing of the Statement of the Case. The date of mailing of the
Statement of the Case will be presumed to be the same as the date of the
Statement of the Case for purposes of determining whether an appeal has
been timely filed.
(Authority: 38 U.S.C. 7105A(b))
(c) Supplemental Statement of the Case. Where a Supplemental
Statement of the Case is furnished by the agency of original
jurisdiction in a simultaneously contested claim, a period of 30 days
from the date of mailing of the Supplemental Statement of the Case will
be allowed for response, but the receipt of a Supplemental Statement of
the Case will not extend the time allowed for filing a Substantive
Appeal as set forth in paragraph (b) of this section. The date of
mailing of the Supplemental Statement of the Case will be presumed to be
the same as the date of the Supplemental Statement of the Case for
purposes of determining whether a response has been timely filed.
Provided a Substantive Appeal has been timely filed in accordance with
paragraph (b) of this section, the response to a Supplemental Statement
of the Case is optional and is not required for the perfection of an
appeal.
(Authority: 38 U.S.C. 7105(d)(3), 7105A(b))
[57 FR 4109, Feb. 3, 1992, as amended at 68 FR 64806, Nov. 17, 2003]
Sec. 20.502 Rule 502. Time limit for response to appeal by another
contesting party in a simultaneously contested claim.
A party to a simultaneously contested claim may file a brief or
argument in answer to a Substantive Appeal filed by another contesting
party. Any such brief or argument must be filed with the agency of
original jurisdiction within 30 days from the date the content of the
Substantive Appeal
[[Page 81]]
is furnished as provided in Sec. 19.102 of this chapter. Such content
will be presumed to have been furnished on the date of the letter that
accompanies the content.
(Authority: 38 U.S.C. 7105A(b))
[66 FR 60153, Dec. 3, 2001]
Sec. 20.503 Rule 503. Extension of time for filing a Substantive Appeal
in simultaneously contested claims.
An extension of the 30-day period to file a Substantive Appeal in
simultaneously contested claims may be granted if good cause is shown.
In granting an extension, consideration will be given to the interests
of the other parties involved. A request for such an extension must be
in writing and must be made prior to expiration of the time limit for
filing the Substantive Appeal.
(Authority: 38 U.S.C. 7105A(b))
Sec. 20.504 Rule 504. Notices sent to last addresses of record in
simultaneously contested claims.
Notices in simultaneously contested claims will be forwarded to the
last address of record of the parties concerned and such action will
constitute sufficient evidence of notice.
(Authority: 38 U.S.C. 7105A(b))
Sec. Sec. 20.505-20.599 [Reserved]
Subpart G_Representation
Cross-Reference: In cases involving access to medical records
relating to drug abuse, alcoholism, alcohol abuse, sickle cell anemia,
or infection with the human immunodeficiency virus, also see 38 U.S.C.
7332.
Sec. 20.600 Rule 600. Right to representation.
An appellant will be accorded full right to representation in all
stages of an appeal by a recognized organization, attorney, agent, or
other authorized person.
(Authority: 38 U.S.C. 5901-5905, 7105(a))
Sec. 20.601 Rule 601. Only one representative recognized.
A specific claim may be prosecuted at any one time by only one
recognized organization, attorney, agent or other person properly
designated to represent the appellant.
(Authority: 38 U.S.C. 7105(b)(2))
Sec. 20.602 Rule 602. Representation by recognized organizations.
In order to designate a recognized organization as his or her
representative, an appellant must execute a VA Form 21-22, ``Appointment
of Veterans Service Organization as Claimant's Representative.'' This
form gives the organization power of attorney to represent the
appellant. The designation will be effective when it is received by the
agency of original jurisdiction or, if the appellate record has been
certified to the Board for review, by the Board of Veterans' Appeals. A
properly filed designation made prior to appeal will continue to be
honored, unless it has been revoked by the appellant or unless the
representative has properly withdrawn.
(Authority: 38 U.S.C. 7105(b)(2))
Sec. 20.603 Rule 603. Representation by attorneys-at-law.
(a) Designation. An attorney-at-law may be designated as an
appellant's representative through a properly executed VA Form 22a,
``Appointment of Attorney or Agent as Claimant's Representative.'' This
form gives the attorney power of attorney to represent the appellant. In
lieu thereof, an attorney may state in writing on his or her letterhead
that he or she is authorized to represent the appellant in order to have
access to information in the appellant's file pertinent to the
particular claim presented. For an attorney to have complete access to
all information in an individual's records, the attorney must provide a
signed consent from the appellant or the appellant's guardian. Such
consent shall be equivalent to an executed power of attorney. The
designation must be of an individual attorney, rather than a firm or
partnership. An appellant may limit an attorney's right to act as his or
her representative in an appeal to representation with respect to a
specific claim for one or more specific benefits by noting the
restriction in the written designation. Unless specifically
[[Page 82]]
noted to the contrary, however, designations of an attorney as a
representative will extend to all matters with respect to claims for
benefits under laws administered by the Department of Veterans Affairs.
Designations are effective when they are received by the agency of
original jurisdiction or, if the appellate record has been certified to
the Board for review, by the Board of Veterans' Appeals. A properly
filed designation made prior to appeal will continue to be honored,
unless it has been revoked or unless the representative has properly
withdrawn. Legal interns, law students, and paralegals may not be
independently accredited to represent appellants under this Rule.
(b) Attorneys employed by recognized organization. A recognized
organization may employ an attorney-at-law to represent an appellant. If
the attorney so employed is not an accredited representative of the
recognized organization, the signed consent of the appellant for the
substitution of representatives must be obtained and submitted to the
agency of original jurisdiction or, if the appellate record has been
certified to the Board for review, to the Board of Veterans' Appeals.
When the signed consent is received by the agency of original
jurisdiction or the Board, as applicable, the attorney will be
recognized as the appellant's representative in lieu of the
organization.
(c) Participation of associated or affiliated attorneys. With the
specific written consent of the appellant, an attorney associated or
affiliated with the appellant's attorney of record, including an
attorney employed by the same legal services office as the attorney of
record, may assist in representation of the appellant and may have
access to the appellant's Department of Veterans Affairs records to the
same extent as the attorney of record. Unless revoked by the appellant,
such consent will remain effective in the event the original attorney of
record is replaced by another attorney who is a member of the same law
firm or an attorney employed by the same legal services office. The
consent must include the name of the veteran; the name of the appellant
if other than the veteran (e.g., a veteran's survivor, a guardian, or a
fiduciary appointed to receive VA benefits on an individual's behalf);
the applicable Department of Veterans Affairs file number; the name of
the attorney of record; the consent of the appellant for the use of the
services of the associated or affiliated attorney and for that
individual to have access to applicable Department of Veterans Affairs
records; and the name of the associated or affiliated attorney who will
be assisting in the case. The consent must be filed with the agency of
original jurisdiction or, if the appellate record has been certified to
the Board for review, with the Board of Veterans' Appeals. The presiding
Member at a hearing on appeal may require that not more than one
attorney participate in the examination of any one witness or impose
other reasonable limitations to ensure orderly conduct of the hearing.
(Authority: 38 U.S.C. 5901, 5904)
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]
Sec. 20.604 Rule 604. Representation by agents.
(a) Designation. The designation of an agent will be by a duly
executed power of attorney, VA Form 22a, ``Appointment of Attorney or
Agent as Claimant's Representative,'' or its equivalent. The designation
must be of an individual, rather than a firm or partnership. The
designation will be effective when it is received by the agency of
original jurisdiction or, if the appellate record has been certified to
the Board for review, by the Board of Veterans' Appeals. A properly
filed designation made prior to appeal will continue to be honored,
unless it has been revoked or unless the representative has properly
withdrawn.
(b) Admission to practice. The provisions of 38 U.S.C. 5904 and of
Sec. 14.629(b) of this chapter are applicable to the admission of
agents to practice before the Department of Veterans Affairs. Authority
for making determinations concerning admission to practice rests with
the General Counsel of the Department of Veterans Affairs, and any
questions concerning admissions to practice should be addressed to:
Office
[[Page 83]]
of the General Counsel (022A), Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 5904)
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]
Sec. 20.605 Rule 605. Other persons as representative.
(a) Scope of rule. This section applies to representation other than
by a recognized organization, an agent admitted to practice before the
Department of Veterans Affairs, or an attorney-at-law.
(b) Who may act as representative. Any competent person may be
recognized as a representative for a particular claim, unless that
person has been barred from practice before the Department of Veterans
Affairs.
(c) Designation. The designation of an individual to act as an
appellant's representative may be made by executing a VA Form 22a,
``Appointment of Attorney or Agent as Claimant's Representative.'' This
form gives the individual power of attorney to represent the appellant
in all matters pertaining to the presentation and prosecution of claims
for any and all benefits under laws administered by the Department of
Veterans Affairs. In lieu of using the form, the designation may be by a
written document signed by both the appellant and the individual
representative, which may be in the form of a letter, which authorizes a
named individual to act as the appellant's representative only with
respect to a specific claim involving one or more specific benefits. The
document must include the name of the veteran; the name of the appellant
if other than the veteran (e.g., a veteran's survivor, a guardian, or a
fiduciary appointed to receive VA benefits on an individual's behalf);
the applicable Department of Veterans Affairs file number; the
appellant's consent for the individual representative to have access to
his or her Department of Veterans Affairs records; the name of the
individual representative; a description of the specific claim for
benefits to which the designation of representation applies; and a
certification that no compensation will be charged or paid for the
individual representative's services. The designation, in either form,
must be filed with the agency of original jurisdiction or, if the
appellate record has been certified to the Board for review, with the
Board of Veterans' Appeals. The designation will be effective when it is
received by the agency of original jurisdiction or, if the appellate
record has been certified to the Board for review, by the Board of
Veterans' Appeals. A properly filed designation made prior to appeal
will continue to be honored, unless it has been revoked or unless the
representative has properly withdrawn.
(d) Representation of more than one appellant. An individual
recognized as an appellant's representative under this Rule may
represent only one appellant. If an individual has been recognized as a
representative for one appellant and wishes to represent another
appellant, he or she must obtain permission to do so from the Office of
the General Counsel as provided in Sec. 14.630 of this chapter.
(Authority: 38 U.S.C. 5903)
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]
Sec. 20.606 Rule 606. Legal interns, law students and paralegals.
(a) Consent of appellant. If it is contemplated that a legal intern,
law student, or paralegal will assist in the appeal, written consent
must be obtained from the appellant. The written consent must include
the name of the veteran; the name of the appellant if other than the
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary
appointed to receive VA benefits on an individual's behalf); the
applicable Department of Veterans Affairs file number; the name of the
attorney-at-law; the consent of the appellant for the use of the
services of legal interns, law students, or paralegals and for such
individuals to have access to applicable Department of Veterans Affairs
records; and the names of the legal interns, law students, or paralegals
who will be assisting in the case. In the case of appeals before the
Board in Washington, DC, the signed consent must be submitted to:
Director, Management and Administration (01E), Board of Veterans'
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case
[[Page 84]]
of hearings before a Member or Members of the Board at Department of
Veterans field facilities, the consent must be presented to the
presiding Member of the hearing as noted in paragraph (d). Unless
revoked by the appellant, such consent will remain effective in the
event the original attorney of record is replaced by another attorney
who is a member of the same law firm or another attorney employed by the
same legal services office.
(b) Supervision. Legal interns, law students and paralegals must be
under the direct supervision of a recognized attorney-at-law in order to
prepare and present cases before the Board of Veterans' Appeals.
(c) Hearings. Legal interns, law students and paralegals who desire
to participate at a hearing before the Board in Washington, DC, must
make advance arrangements with the Director, Management and
Administration (01E) and submit written authorization from the attorney
naming the individual who will be participating in the hearing. In the
case of hearings before a Member or Members of the Board at Department
of Veterans field facilities in the field, the attorney-at-law not less
than 10 days prior to the scheduled hearing date must inform the office
of the Department of Veterans Affairs official who gave notice of the
Travel Board hearing date and time that the services of a legal intern,
law student, or paralegal will be used at the hearing. At the same time,
a prehearing conference with the presiding Member of the hearing must be
requested. At the conference, the written consent of the appellant for
the use of the services of such an individual required by paragraph (a)
must be presented and agreement reached as to the individual's role in
the hearing. Legal interns, law students or paralegals may not present
oral arguments at hearings either in the field or in Washington, DC,
unless the recognized attorney-at-law is present. Not more than two such
individuals may make presentations at a hearing. The presiding Member at
a hearing on appeal may require that not more than one such individual
participate in the examination of any one witness or impose other
reasonable limitations to ensure orderly conduct of the hearing.
(d) Withdrawal of permission for legal interns, law students, and
paralegals to assist in the presentation of an appeal. When properly
designated, the attorney-at-law is the recognized representative of the
appellant and is responsible for ensuring that an appeal is properly
presented. Legal interns, law students, and paralegals are permitted to
assist in the presentation of an appeal as a courtesy to the attorney-
at-law. Permission for a legal intern, law student, or paralegal to
prepare and present cases before the Board may be withdrawn by the
Chairman or presiding Member at any time if a lack of competence,
unprofessional conduct, or interference with the appellate process is
demonstrated by that individual.
(Authority: 38 U.S.C. 5904, 7105(b)(2))
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996; 61 FR
29028, June 7, 1996]
Sec. 20.607 Rule 607. Revocation of a representative's authority to act.
Subject to the provisions of Sec. 20.1304 of this part, an
appellant may revoke a representative's authority to act on his or her
behalf at any time, irrespective of whether another representative is
concurrently designated. Written notice of the revocation must be given
to the agency of original jurisdiction or, if the appellate record has
been certified to the Board for review, to the Board of Veterans'
Appeals. The revocation is effective when notice of the revocation is
received by the agency of original jurisdiction or the Board, as
applicable. An appropriate designation of a new representative will
automatically revoke any prior designation of representation. If an
appellant has limited a designation of representation by an attorney-at-
law to a specific claim under the provisions of Rule 603, paragraph (a)
(Sec. 20.603(a) of this part), or has limited a designation of
representation by an individual to a specific claim under the provisions
of Rule 605, paragraph (c) (Sec. 20.605(c) of this part), such specific
authority constitutes a revocation of an existing representative's
authority to act only with respect to, and during the pendency of, that
specific
[[Page 85]]
claim. Following the final determination of that claim, the existing
representative's authority to act will be automatically restored in
full, unless otherwise revoked.
(Authority: 38 U.S.C. 5901-5904)
Sec. 20.608 Rule 608. Withdrawal of services by a representative.
(a) Withdrawal of services prior to certification of an appeal. A
representative may withdraw services as representative in an appeal at
any time prior to certification of the appeal to the Board of Veterans'
Appeals by the agency of original jurisdiction. The representative must
give written notice of such withdrawal to the appellant and to the
agency of original jurisdiction. The withdrawal is effective when notice
of the withdrawal is received by the agency of original jurisdiction.
(b) Withdrawal of services after certification of an appeal--(1)
Applicability. The restrictions on a representative's right to withdraw
contained in this paragraph apply only to those cases in which the
representative has previously agreed to act as representative in an
appeal. In addition to express agreement, orally or in writing, such
agreement shall be presumed if the representative makes an appearance in
the case by acting on an appellant's behalf before the Board in any way
after the appellant has designated the representative as such as
provided in Sec. Sec. 20.602 through 20.605 of this part. The preceding
sentence notwithstanding, an appearance in an appeal solely to notify
the Board that a designation of representation has not been accepted
will not be presumed to constitute such consent.
(2) Procedures. After the agency of original jurisdiction has
certified an appeal to the Board of Veterans' Appeals, a representative
may not withdraw services as representative in the appeal unless good
cause is shown on motion. Good cause for such purposes is the extended
illness or incapacitation of an agent admitted to practice before the
Department of Veterans Affairs, an attorney-at-law, or other individual
representative; failure of the appellant to cooperate with proper
preparation and presentation of the appeal; or other factors which make
the continuation of representation impossible, impractical, or
unethical. Such motions must be in writing and must include the name of
the veteran, the name of the claimant or appellant if other than the
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary
appointed to receive VA benefits on an individual's behalf), the
applicable Department of Veterans Affairs file number, and the reason
why withdrawal should be permitted, and a signed statement certifying
that a copy of the motion was sent by first-class mail, postage prepaid,
to the appellant, setting forth the address to which the copy was
mailed. Such motions should not contain information which would violate
privileged communications or which would otherwise be unethical to
reveal. Such motions must be filed at the following address: Office of
the Senior Deputy Vice Chairman (012), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. The appellant may file a
response to the motion with the Board at the same address not later than
30 days following receipt of the copy of the motion and must include a
signed statement certifying that a copy of the response was sent by
first-class mail, postage prepaid, to the representative, setting forth
the address to which the copy was mailed.
(Authority: 38 U.S.C. 5901-5904, 7105(a))
(Approved by the Office of Management and Budget under control number
2900-0085)
[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996; 69 FR
21069, Apr. 20, 2004]
Sec. 20.609 Rule 609. Payment of representative's fees in proceedings
before Department of Veterans Affairs field personnel and before the
Board of Veterans' Appeals.
(a) Applicability of rule. The provisions of this section apply to
the services of representatives with respect to benefits under laws
administered by the Department of Veterans Affairs in all proceedings
before Department of Veterans Affairs field personnel or before the
Board of Veterans' Appeals regardless of whether an appeal has been
initiated.
(b) Who may charge fees for representation. Only agents and
attorneys-at-law
[[Page 86]]
may receive fees from claimants or appellants for their services.
Recognized organizations (including their accredited representatives
when acting as such) and individuals recognized pursuant to Rule 605
(Sec. 20.605 of this part) are not permitted to receive fees. An
attorney-at-law or agent who may also be an accredited representative of
a recognized organization may not receive such fees unless he or she has
been properly designated as representative in accordance with Rule
603(a) or Rule 604(a) (Sec. 20.603(a) or Sec. 20.604(a) of this part)
in his or her individual capacity.
(c) Circumstances under which fees may be charged. (1) General.
Except as noted in paragraph (d) of this section, attorneys-at-law and
agents may charge claimants or appellants for their services only if
both of the following conditions have been met:
(i) A final decision has been promulgated by the Board of Veterans'
Appeals with respect to the issue, or issues, involved; and
(ii) The attorney-at-law or agent was retained not later than one
year following the date that the decision by the Board of Veterans'
Appeals with respect to the issue, or issues, involved was promulgated.
(This condition will be considered to have been met with respect to all
successor attorneys-at-law or agents acting in the continuous
prosecution of the same matter if a predecessor was retained within the
required time period.)
(2) Clear and unmistakable error cases. For the purposes of this
section, in the case of a motion under subpart O of this part (relating
to requests for revision of prior Board decisions on the grounds of
clear and unmistakable error), the ``issue'' referred to in this
paragraph (c) shall have the same meaning as ``issue'' in Rule 1401(a)
(Sec. 20.1401(a) of this part).
(d) Exceptions--(1) Chapter 37 loans. With respect to services of
agents and attorneys provided after October 9, 1992, a reasonable fee
may be charged or paid in connection with any proceeding in a case
arising out of a loan made, guaranteed, or insured under chapter 37,
United States Code, even though the conditions set forth in paragraph
(c) of this section are not met.
(2) Payment of fee by disinterested third party. (i) An attorney-at-
law or agent may receive a fee or salary from an organization,
governmental entity, or other disinterested third party for
representation of a claimant or appellant even though the conditions set
forth in paragraph (c) of this section have not been met. In no such
case may the attorney or agent charge a fee which is contingent, in
whole or in part, on whether the matter is resolved in a manner
favorable to the claimant or appellant.
(ii) For purposes of this part, a person shall be presumed not to be
disinterested if that person is the spouse, child, or parent of the
claimant or appellant, or if that person resides with the claimant or
appellant. This presumption may be rebutted by clear and convincing
evidence that the person in question has no financial interest in the
success of the claim.
(iii) The provisions of paragraph (g) of this section (relating to
fee agreements) shall apply to all payments or agreements to pay
involving disinterested third parties. In addition, the agreement shall
include or be accompanied by the following statement, signed by the
attorney or agent: ``I certify that no agreement, oral or otherwise,
exists under which the claimant or appellant will provide anything of
value to the third-party payer in this case in return for payment of my
fee or salary, including, but not limited to, reimbursement of any fees
paid.''.
(e) Fees permitted. Fees permitted for services of an attorney-at-
law or agent admitted to practice before the Department of Veterans
Affairs must be reasonable. They may be based on a fixed fee, hourly
rate, a percentage of benefits recovered, or a combination of such
bases. Factors considered in determining whether fees are reasonable
include:
(1) The extent and type of services the representative performed;
(2) The complexity of the case;
(3) The level of skill and competence required of the representative
in giving the services;
(4) The amount of time the representative spent on the case;
[[Page 87]]
(5) The results the representative achieved, including the amount of
any benefits recovered;
(6) The level of review to which the claim was taken and the level
of the review at which the representative was retained;
(7) Rates charged by other representatives for similar services; and
(8) Whether, and to what extent, the payment of fees is contingent
upon the results achieved.
(f) Presumption of reasonableness. Fees which total no more than 20
percent of any past-due benefits awarded, as defined in Rule 20.3(n)
(Sec. 20.3(n) of this part), will be presumed to be reasonable.
(g) Fee agreements. All agreements for the payment of fees for
services of attorneys-at-law and agents (including agreements involving
fees or salary paid by an organization, governmental entity or other
disinterested third party) must be in writing and signed by both the
claimant or appellant and the attorney-at-law or agent. The agreement
must include the name of the veteran, the name of the claimant or
appellant if other than the veteran, the name of each disinterested
third-party payer (see paragraph (d)(2) of this section), the applicable
Department of Veterans Affairs file number, and the specific terms under
which the amount to be paid for the services of the attorney-at-law or
agent will be determined. A copy of the agreement must be filed with the
Board of Veterans' Appeals within 30 days of its execution by mailing
the copy to the following address: Office of the Senior Deputy Vice
Chairman (012), Board of Veterans' Appeals, 810 Vermont Avenue, NW,
Washington, DC 20420.
(h) Payment of fees by Department of Veterans Affairs directly to an
attorney-at-law from past-due benefits. (1) Subject to the requirements
of the other paragraphs of this section, including paragraphs (c) and
(e), the claimant or appellant and an attorney-at-law may enter into a
fee agreement providing that payment for the services of the attorney-
at-law will be made directly to the attorney-at-law by the Department of
Veterans Affairs out of any past-due benefits awarded as a result of a
successful appeal to the Board of Veterans' Appeals or an appellate
court or as a result of a reopened claim before the Department following
a prior denial of such benefits by the Board of Veterans' Appeals or an
appellate court. Such an agreement will be honored by the Department
only if the following conditions are met:
(i) The total fee payable (excluding expenses) does not exceed 20
percent of the total amount of the past-due benefits awarded,
(ii) The amount of the fee is contingent on whether or not the claim
is resolved in a manner favorable to the claimant or appellant, and
(iii) The award of past-due benefits results in a cash payment to a
claimant or an appellant from which the fee may be deducted. (An award
of past-due benefits will not always result in a cash payment to a
claimant or an appellant. For example, no cash payment will be made to
military retirees unless there is a corresponding waiver of retirement
pay. (See 38 U.S.C. 5304(a) and Sec. 3.750 et seq. of this chapter.))
(2) For purposes of this paragraph, a claim will be considered to
have been resolved in a manner favorable to the claimant or appellant if
all or any part of the relief sought is granted.
(3) For purposes of this paragraph, ``past-due benefits'' means a
nonrecurring payment resulting from a benefit, or benefits, granted on
appeal or awarded on the basis of a claim reopened after a denial by the
Board of Veterans' Appeals or the lump sum payment which represents the
total amount of recurring cash payments which accrued between the
effective date of the award, as determined by applicable laws and
regulations, and the date of the grant of the benefit by the agency of
original jurisdiction, the Board of Veterans' Appeals, or an appellate
court.
(i) When the benefit granted on appeal, or as the result of the
reopened claim, is service connection for a disability, the ``past-due
benefits'' will be based on the initial disability rating assigned by
the agency of original jurisdiction following the award of service
connection. The sum will equal the payments accruing from the effective
[[Page 88]]
date of the award to the date of the initial disability rating decision.
If an increased evaluation is subsequently granted as the result of an
appeal of the disability evaluation initially assigned by the agency of
original jurisdiction, and if the attorney-at-law represents the
claimant or appellant in that phase of the claim, the attorney-at-law
will be paid a supplemental payment based upon the increase granted on
appeal, to the extent that the increased amount of disability is found
to have existed between the initial effective date of the award
following the grant of service connection and the date of the rating
action implementing the appellate decision granting the increase.
(ii) Unless otherwise provided in the fee agreement between the
claimant or appellant and the attorney-at-law, the attorney-at-law's
fees will be determined on the basis of the total amount of the past-due
benefits even though a portion of those benefits may have been
apportioned to the claimant's or appellant's dependents.
(iii) If an award is made as the result of favorable action with
respect to several issues, the past-due benefits will be calculated only
on the basis of that portion of the award which results from action
taken on issues concerning which the criteria in paragraph (c) of this
section have been met.
(4) In addition to filing a copy of the fee agreement with the Board
of Veterans' Appeals as required by paragraph (g) of this section, the
attorney-at-law must notify the agency of original jurisdiction within
30 days of the date of execution of the agreement of the existence of an
agreement providing for the direct payment of fees out of any benefits
subsequently determined to be past due and provide that agency with a
copy of the fee agreement.
(i) Motion for review of fee agreement. The Board of Veterans'
Appeals may review a fee agreement between a claimant or appellant and
an attorney-at-law or agent upon its own motion or upon the motion of
any party to the agreement and may order a reduction in the fee called
for in the agreement if it finds that the fee is excessive or
unreasonable in light of the standards set forth in paragraph (e) of
this section. Such motions must be in writing and must include the name
of the veteran, the name of the claimant or appellant if other than the
veteran, and the applicable Department of Veterans Affairs file number.
Such motions must set forth the reason, or reasons, why the fee called
for in the agreement is excessive or unreasonable; must be accompanied
by all evidence the moving party desires to submit; and must include a
signed statement certifying that a copy of the motion and any evidence
was sent by first-class mail, postage prepaid, to each other party to
the agreement, setting forth the address to which each such copy was
mailed. Such motions (other than motions by the Board) must be filed at
the following address: Office of the Senior Deputy Vice Chairman (012),
Board of Veterans' Appeals, 810 Vermont Avenue, NW, Washington, DC
20420. The other parties may file a response to the motion, with any
accompanying evidence, with the Board at the same address not later than
30 days following the date of receipt of the copy of the motion and must
include a signed statement certifying that a copy of the response and
any evidence was sent by first-class mail, postage prepaid, to each
other party to the agreement, setting forth the address to which each
such copy was mailed. Once there has been a ruling on the motion, an
order shall issue which will constitute the final decision of the Board
with respect to the motion. If a reduction in the fee is ordered, the
attorney or agent must credit the account of the claimant or appellant
with the amount of the reduction and refund any excess payment on
account to the claimant or appellant not later than the expiration of
the time within which the ruling may be appealed to the United States
Court of Appeals for Veterans Claims.
(j) In addition to whatever other penalties may be prescribed by law
or regulation, failure to comply with the requirements of this section
may result in proceedings under Sec. 14.633 of this chapter to
terminate the attorney's or
[[Page 89]]
agent's right to practice before the Department of Veterans Affairs and
the Board of Veterans' Appeals.
(Authority: 38 U.S.C. 5902, 5904, 5905)
(Approved by the Office of Management and Budget under control number
2900-0085)
[57 FR 4109, Feb. 3, 1992, as amended at 57 FR 38443, Aug. 25, 1992; 59
FR 25330, May 16, 1994; 64 FR 2138, Jan. 13, 1999; 65 FR 14472, Mar. 17,
2000; 67 FR 36104, May 23, 2002; 67 FR 49600, July 31, 2002]
Sec. 20.610 Rule 610. Payment of representative's expenses in proceedings
before Department of Veterans Affairs field personnel and before the Board
of Veterans' Appeals.
(a) Applicability of rule. The provisions of this section apply to
the services of representatives with respect to benefits under laws
administered by the Department of Veterans Affairs in all proceedings
before Department of Veterans Affairs field personnel or before the
Board of Veterans' Appeals regardless of whether an appeal has been
initiated.
(b) General. Any representative may be reimbursed for expenses
incurred on behalf of a veteran or a veteran's dependents or survivors
in the prosecution of a claim for benefits pending before the Department
of Veterans Affairs. Whether such a representative will be reimbursed
for expenses and the method of such reimbursement is a matter to be
determined by the representative and the claimant or appellant. Expenses
are not payable directly to the representative by the Department of
Veterans Affairs out of benefits determined to be due to a claimant or
appellant. Unless required in conjunction with a motion for the review
of expenses filed in accordance with paragraph (d) of this section,
agreements for the reimbursement of expenses need not be filed with the
Department of Veterans Affairs or the Board of Veterans' Appeals.
(c) Nature of expenses subject to reimbursement. ``Expenses''
include nonrecurring expenses incurred directly in the prosecution of a
claim for benefits upon behalf of a claimant or appellant. Examples of
such expenses include expenses for travel specifically to attend a
hearing with respect to a particular claim, the cost of copies of
medical records or other documents obtained from an outside source, the
cost of obtaining the services of an expert witness or an expert
opinion, etc. ``Expenses'' do not include normal overhead costs of the
representative such as office rent, utilities, the cost of obtaining or
operating office equipment or a legal library, salaries of the
representative and his or her support staff, the cost of office
supplies, etc.
(d) Expense charges permitted; motion for review of expenses.
Reimbursement for the expenses of a representative may be obtained only
if the expenses are reasonable. The Board of Veterans' Appeals may
review expenses charged by a representative upon the motion of the
claimant or appellant and may order a reduction in the expenses charged
if it finds that they are excessive or unreasonable. Such motions must
be in writing and must include the name of the veteran, the name of the
claimant or appellant if other than the veteran, and the applicable
Department of Veterans Affairs file number. Such motions must
specifically identify which expenses charged are unreasonable; must set
forth the reason, or reasons, why such expenses are excessive or
unreasonable; must be accompanied by all evidence the claimant or
appellant desires to submit; and must include a signed statement
certifying that a copy of the motion and any evidence was sent by first-
class mail, postage prepaid, to the representative. Such motions must be
filed at the following address: Office of the Senior Deputy Vice
Chairman (012), Board of Veterans' Appeals, 810 Vermont Avenue, NW,
Washington, DC 20420. The representative may file a response to the
motion, with any accompanying evidence, with the Board at the same
address not later than 30 days following the date of receipt of the copy
of the motion and must include a signed statement certifying that a copy
of the response and any evidence was sent by first-class mail, postage
prepaid, to the claimant or appellant, setting forth the address to
which the copy was mailed. Factors considered in determining whether
expenses are excessive or unreasonable include the complexity of the
case, the potential
[[Page 90]]
extent of benefits recoverable, whether travel expenses are in keeping
with expenses normally incurred by other representatives, etc. Once
there has been a ruling on the motion, an order shall issue which will
constitute the final decision of the Board with respect to the motion.
(e) In addition to whatever other penalties may be prescribed by law
or regulation, failure to comply with the requirements of this section
may result in proceedings under Sec. 14.633 of this chapter to
terminate the attorney's or agent's right to practice before the
Department of Veterans Affairs and the Board of Veterans' Appeals.
(Authority: 38 U.S.C. 5904)
(Approved by the Office of Management and Budget under control number
2900-0085)
[57 FR 4109, Feb. 3, 1992, as amended at 57 FR 38443, Aug. 25, 1992; 67
FR 36105, May 23, 2002]
Sec. Sec. 20.612-20.699 [Reserved]
Subpart H_Hearings on Appeal